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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


J 


THE     PRINCIPLES 


OF  THE 


LAW  OF  EVIDENCE 


WITH   ELEMENTARY   RULES   FOR  CONDUCTING 

THE  EXAMINATION 

AND 

CROSS-EXAMINATION  OF  WITNESSES 

By  W.  M.  BEST,  A.M.,  LL.B. 

FIRST  AMERICAN,   FROM   THE   SIXTH  LONDON   EDITION   OF 

JOHN    A.    RUSSELL,    Esq.,    LL.B. 

BY 

JAMES  APPLETON  MORGAN,  Esq. 

Or  THE  NEW   YORK   BAR.      AUTHOR    OF   "  THE   LAW   OF  LITERATURE,"   AND   AMERICAN     BDITOB 
OF   "  ADDISON    ON   CONTRACTS,"    ETC.,   ETC. 

IN    TWO    VOLUMES 

VOL.    II 


JEESEY  CITY,  N.  J., 
FREDERICK  D.  LINN  &  CO., 

1882. 


T 


ANALYTICAL    TABLE 

OF 

CONTENTS    OF   VOLUME  II. 

BOOK  III. 

PARAGRAPH  PAGR 

Part  II.    The  Secondary  Rules  of  Evidence  .  527 

Chapter  1.     Direct  and  circumstantial  evidence .         .  529 

Two  forms  of  judicial  evidence 293  529 

Direct  evidence 294  531 

Circumstantial  evidence       .....  294  531 

Conclusive 294  532 

Presumptive 294  532 

Direct  and  circumstantial  evidence  equally  admissible      .  294  532 

Comparison  between  direct  and  presumptive  evidence  .  295  534 

Advantages  of  direct  over  presumptive  evidence     .  295  534 

Advantages  of  presumptive  over  direct  evidence  295  537 

Chapter  II.     Presumptive  evidence,   presumptions  and    fictions 

of  law  ......... 

Design  of  this  chapter     .......  296  540 

Probative  force  of  a  chain  of  presumptive  proof         .         .  297  540 

Presumption    ...                 29S  547 

Original  signification  of  .         .         .         .         .         .  298  547 

Legal  signification  of 299  54S 

Different  meanings  of 300  552 

Explanation  of  certain  expressions  used  by  the  civilians 

and  canonists 301  552 

Division  of  the  subject 302  554 

Section  I.     Presumptive  evidence,  presumptions  generally  and 

fictions  of  law 303  554 

Sub-Section  1.     Presumptions  of  law  and  fictions  of  law  .  555 

Presumptions  of  law           .......  304  556 

Grounds  of 305  557 

Irrebuttable  presumptions  of  law  or  Prsesumptiones  juris 

et  de  jure 306  558 

Number  of  .         . 307  560 

Use  of    .        . 308  560 

Fictions  of  law       ........  309  560 

Use  of             ........  310  501 


iv 


CONTENTS. 


Rules  respecting  , 

1.  Must  not  prejudice  ir  nocent  parties 

2.  Must  have  a  possible  rubject-matter 
Kinds  of 

1.  Affirmative  ..... 

2.  Negative 

3.  Of  relation  .... 

To  persons 

To  things       .... 
To  place  .... 

To  time 
Rebuttable  presumptions  of  law,  or  Prsesumptiones  juris 

tantum 

Sub-section  2.     Presumptions  of  fact  and  mixed  presump- 
tions           . 

Presumptions  of  fact 

1°.  Grounds  and  sources  of        .... 
Presumptions  relating  to  things 

persons    . 

the  acts  and  thoughts  of 
agents 
S°.  Probative  force  of  presumptive  evidence 

Division    of    presumptions   of  fact   into   violent, 

probable,  and  light 

Doubtful  utility  of 

Division  of  presumptions  of  fact  into  slight  and 
strong 

1.  Slight 

Do   not   constitute   proof,   or    shift   the 

burden  of  proof 

Use  and  effect  of  .... 

2.  Strong         ....... 

Shift  the  burden  of  proof     . 
Prima  facie  evidence 

Effect  of 

Distinguishable  from  presumptiones  juris 

tantum 

Mixed  presumptions 

Grounds  of 

Artificial  presumptions  formerly  carried  too  far 
Legitimate  use  of  artificial  presumptions    .... 

Directions  to  juries  respecting  presumptions  of  fact  and 
mixed  presumptions        ....... 

New  trials  for  disregard  by  juries  of  presumptions  of  fact 
or  mixed  presumptions 

3.  Conflicting  presumptions 

Maxim  "  Stabitur  prsesumptioni  donee  probetur  in  con- 
trarium "  


PARAGRAPH 

310 


3" 
312 

313 
313 
313 
313 
313 
313 

313 
313 


327 


PAGH 
56I 
561 
5D2 

563 
503 
563 
563 
504 
504 
565 
565 


314     566 


315 

569 

316 

569 

316 

569 

316 

569 

317 

569 

317 

571 

317 

571 

318 

573 

319 

575 

319 

576 

319 

5/6 

320 

321 

578 

321 

578 

321 

578 

322 

580 

323 

582 

324 

590 

324 

325 

590 

325 

591 

326   594 


594 
596 


328   596 


CONTENTS.  v 

PARAGRAPH  PAGE  - 

Conflicting  presumptions 529  597 

Ruies  respecting 330  598 

Rule  1.  Special  presumptions  take  precedence  of 

general 331  599 

Rule  2.  Presvfmptions  derived   from  the    course 
of   nature    are    stronger    than    casual 

presumptions       .....  332  600 

Rule  3.  Presumptions    are   favored    which    give 

validity  to  acts    .....  333  602 

Rule  4.  The  presumption  of  innocence  is  favored 

in  law           ......  334  602 

section  2.     Presumptions  of  law  and  fact  usually  met  with  in 

practice            ........  335  607 

Sub-Section  1.     Presumption  against  ignorance  of  the  law  336  608 

Generally 336  608 

Courts  of  justice 337  609 

The  Sovereign 337  610 

Sub-Section  2.     Presumptions  derived  from   the  course  of 

nature 338  610 

Physical 

Gestation  of  the  human  foetus         ....  339  612 

Maximum  term  of               .         .         .         .  339  612 

Minimum  term  of         ,         .         .         .         .  340  614 

7£oral 

From  feelings  and  emotions  of  the  human  heart    .  342  615 

Presumption  from  transferring  money          .         .  342  615 

Presumption  of  benefit 343  615 

Presumption  of  willingness  to  accept  a  benefit  .  343  615 
Presumption    that  a  person    intends   the    natural 

consequences  of  his  acts      .....  344  616 

Sob-section  3.     Presumptions  against  misconduct    .         .  345  617 

1.  Presumptions  against  illegality       ....  346  617 

Construction  of  ambiguous  instruments  and  acts  347  620 

2.  Presumption  of  the  discharge  of  duty    .         .         .  348  621 

3.  "  Odiosa  et  inhonesta   non    sunt  in   lege   prsesu- 

menda" 349  623 

Fraud  and  covin 349  623 

Vice  and  immorality 349  624 

Presumption  of  marriage       .         .          .  349  625 

Presumption  of  legitimacy         .         .         .  349  625 

4.  Presumption  against  wrongful  or  tortious  conduct  350  626 

5.  Presumption  against  irreligion        ....  351  626 

6.  Presumption  of  the  truth  of  testimony       .         .  352  628 
Sub-section  4.     Presumptions  in  favor  of  validity  of  acts. 

Maxims  "  Omnia  praesumuntur  rite  esse  acta,"  &c.    .         .  353  629 

General  view  of  the  subject 354  °3° 

1.  Priora  a  posterioribus     .                             ...  354  630 

2.  Posteriora  a  piioribus          .                            .  354  ^3° 


VI 


CONTENTS. 


3.   Media  ab  extremis          .         .                  .        , 
Division  of  the  subject 

1.  Official  appointments       .... 

2.  Official  acts  .  .  .     «    .  .         •         • 

3.  Judicial  acts 

Rule  does  not  apply  to  give  jurisdiction       . 

4.  Extra  judicial  acts 

Execution  of  wills 

Collateral  facts     ....... 

Construction  of  instruments    .... 

Principle  much  extended  by  modern  statutes    . 
Sub-section  5.     Presumptions  from  possession  and  user    . 
Presumption  of  right  from   possession,  &c.  highly  favored 
in  jurisprudence  ....... 

Possession,  &c.  prima  facie  evidence  of  property         .         . 
Presumption  strengthened   by  length   of  enjoyment, 

•  &c 

Division  of  the  subject  ....... 

t.  Presumption  from  long  user  of  rights  to  certain  things 


PARAGRAPH 

•     354 

355 

356-58 

350 


360 
361 

362 

303 
364 
364 
365 


366 
366 

366 
307 


which  lie  in  grant 


.      368 

369 

•  370 
370-72 

•  373 


Prescription  ...... 

Requisites  of  a  prescriptive  right 

Legal  and  living  memory 
Evidence  of  prescription  from  modern  user 
Prescriptive  claim  not  defeated  by  trifling  vari- 
ations in   exercise  of  the  right         .         .         .     374 
User  evidence  although   not   sufficient   to  raise 

presumption  of  prescriptive  right  .         .     375 

Presumption  of  prescriptive   right  from   enjoy- 
ment, how  put  an  end  to         ...  376 
Title  by  non-existing  grant    ....  377-80 

As  against  the  Crown      .....     381 

As  against  the  rights  of  the  public      .         .         381 
Pews  ........     3S2 

Inconveniences  of  the  old  law         .         .         .         383 
2  &  3  Will.  4,  c.  71.  *s.  1,  2,  3,  4,  5,  6,  7,8,  495 

et  ^eq 384 

Construction  of  this  statute         .         .         .     385 
2  &  3  Will.  4,  c.  100  ....         386 

Has  not  taken  away  the  common  law         .     386 
t.  Incorporeal  rights  not  affected  by  2  &  3  Will.  4,  cc.  71 

&  100 387 

Presumption  of  dedication  of  highways  to  the  public      387 
Presumption  of  surrender  or  extinguishment  of  rights 

by  non-user 388 

Easements 389-90 

Licenses  391 

3.  Presumptions  of  fact  in  support  of  beneficial  enjoyment     392 


PAG  R 

630 

631 

63  r 

634 

634 

636 

636 

63 

633 

638 

639 
641 

641 
641 

641 
641 

643 

645 

645 

645 
647 

650 

652 

652 

654 

658 

659 

660 

661 
665 
667 
667 

66} 
669 

672 

67a 
674 
674 


CONTENTS.  vii 

PARAGRAPH      PAG* 

General  principle 392       674 

Instances .  393       &75 

Presumption  of  conveyances  by  trustees      .         .  394       677 

General  rule* 394       677 

Presumption  of  the  surrender  of  terms  by  trus- 
tees for  years 395       677 

Surrender  of  terms  presumable  from  circumstan- 
ces               396       679 

from  acts  of  own- 
er of  the  inher- 
itance, &c        .  397       679 

8  &  9  Vict.  c.  112 398       6S0 

Belief  of  juries 399      681 

Sub-section  6.     Presumptions  from  the  ordinary  conduct  of 
mankind,  the   habits  of  society,  and  the 

usages  of  trade  ......  682 

Miscellaneous  instances .......  400       682 

Other  instances 401       683 

Date  of  documents 402       684 

Presumptions  from  the  course  of  business  .         .         .         .  403       685 

In  public  offices 403       685 

In  private  offices 403       685 

Other  presumptions  from  the  usages  of  trade  .         .         .  404       685 
£..D-section  7.     Presumption  of  the  continuance  of  things 
in    the    state   in   which    they    have    once 

existed 686 

Fresumption  of  the  continuance  of  debts,  &c.    .         .         .  406       689 

Presumption  of  payment 406       690 

Presumption  of  release    ......  406       691 

Presumption  of  revocation  or  surrender       .         .  407       691 

Presumption  of  the  continuance  of  human  life  .         .         .  408       692 

Presumption  of  death  from  seven  years' absence  .  409       692 
Presumption  of  survivorship  where  several  persons 

perished  by  a  common  calamity  ....  410       696 

Sub-section  S.     Presumptions  in  disfavor  of  a  spoliator  700 

Maxim  "  Omnia  pnesumuntur  contra  spoliatorem  "           .  411       700 

Instances  of  its  application    .         .         .         .         .         .  411       700 

Eloigning,  &c.  instruments  of  evidence,  or  introducing  the 

crimen  falsi  into  legal  proceedings       .         .         .  412       702 
Extent  of  the  presumption  against  the  spoliator  of 

documents             .......  413       703 

Occasionally  carried  too  far 414       704 

Especially  in  criminal  cases     ....  415       706 

Sub-section  9.     Presumptions  in  international  law             .  708 

General  remarks                   ......  416       708 

Public 417       7°3 

Acts  done  by  an  independent   sovereign  who  is, 

also  the  subject  of  another  state       .         .         .  4*8       70? 


via 


CON!  It  NTS. 


Presumptions  in  disfavor  of  a  spoliator 
Frivate        ....... 

Presumptions  relating  to  domicil     . 
Other  presumptions     .... 

Sub-section  io.     Presumptions  in  maritime  law 

Seaworthiness 

Unseaworthiness    .         ..... 

Presumption  of  loss  of  missing  ship 
Implied  stipulations  against  delay  and  deviation 
Sub-section  n.     Miscellaneous  presumptions 

Relating  to  real  estate    ..... 


PARAGRAPH 

419 

.   420 

421 

.   422 


•  423 
423 

.   424 
424 

•  425 
426-7 


PAG* 

709 
709 
7IO 
711 
712 
712 
712 

713 

714 

714 
714 

717 
718 
719 
720 
721 


432 

722 

423 

723 

434 

727 

435 

730 

436 

734 

437 

747 

433 

748 

Founded  on  the  relations  in  which  parties  stand  to  each 

other 428 

In  contracts 429 

Affecting  common  carriers     ......     430 

Affecting  innkeepers 430 

Maxim       .  .........     430 

Section  3.     Presumptions  and  presumptive  evidence  in  crim- 
inal law 431       722 

Sub-section    1.     Legal   presumptions  in  criminal  jurispru- 
dence      ....... 

Criminal  intent  presumed  from  certain  acts  . 

transferred  from  one  act  to  another     .         . 
Presumption  of  higher  degree  of  guilt 
Maxim  "  Qui  semel  malus,  semper  prnesumitur  esse  malus 

eodem  genere  "  . 
Statutory  presumptions  in  criminal  law     .... 

Presumptions- for  the  protection  of  accused  persons 
Sub-section  2.     Presumptive   proof  in  criminal   cases  gen- 
erally   749 

Rules  regulating  the  admissibility  of  evidence  the  same  in 

civil  and  criminal  proceedings 439       749 

Necessity  for  resorting  to  presumptive  proof  more  fre- 
quent in  the  latter 

Rules  of  proof  in  criminal  cases 

1°.  Applicable  in  all  cases 

2°.  When  the  proof  is  presumptive 

I.  There  must  be  clear  and  unequivocal  proof  of 
corpus  delicti     .         .         .         . 
I.  Delicta  facti  transeuntis 
s.  Delicta  facti  permanentis 

Proof  of  facts  forming  basis  of  corpus 

deliciti 

Principles     on    which   this  rule   is 
founded        ..... 
Sound  policy  of  . 

Proof  of  murder  by  eye-witnesses  . 
Whether  in  extreme  cases,  basis  oc 


439 

750 

440 

750 

440 

750 

441 

751 

441 

751 

44i 

752 

442 

753 

442       753 


443 

755 

444 

755 

445 

756 

CONTENlb.  ix 

PARAGRAPH  PAGE 

corpus  delicti   provable   by  pre- 
sumptive evidence        .         .         .  446  757 
Presumptive     evidence     receivable     to 
complete  proof  of  corpus  delicti          .  447  758 
Death  from  violence    .         .         .  447  759 
Accidental  destruction  or  crea- 
tion of  indicia       .         .         .  447 
Death,  from  poison       .         .         .  448  762 
Physical  evidences  of        .         .  443  762 
Moral  evidences  of       .         .  448  764 
Chemical  tests  of      .         .          448-9  764 
3.  Presumptive  evidence  always  admissible 

to  disprove  corpus  delicti        .         .  450  764 
II.  The   hypothesis    of  delinquency   should    be 

consistent  with  all  the  facts  proved       .         .451  765 
Sub-Section  3.     Inculpatory  presumptive  evidence  in  crimi- 
nal proceedings       ........  768 

Inculpatory  presumptive   evidence  in  criminal  proceed- 
ings           452  768 

1.  Real  evidence      .......  452  768 

2.  Evidence  from  intercedent  conduct  or  position  452  769 

3.  Evidence  from  subsequent  conduct         .         .         .  452  769 

4.  Confessorial  evidence          .....  452  769 

I.  Motives,  means,  and  opportunities         ....  453  769 

II.  Preparations  and  previous  attempts           .         .         .     454-5  771 

Infirmative  hypotheses    .         .         .                   456-7  771 

III.  Declarations  of  intention,  and  threats     .         .        .  458  776 

Infirmative  hypotheses            ....  45S  776 

IV.  Change  of  life  or  circumstances      ....  459  778 

V.  Evasion  of  justice 460  778 

Change  of  place  only  presumptive  evidence  of  461  779 

Infirmative  hypotheses    ....         462-3  779 
Offenses  committed  under  prospect  of  change 

of  place 464  782 

Ancient  laws  on  this  subject       .          .         .  465  783 

VI.  Fear  indicated  by  passive  deportment,  &c.         .         .  466  784 

Infirmative  hypotheses        ....  466  7S5 

Confusion  of  mind          .....  466  785 

VII.  Fear  indicated  by  a  desire  for  secrecy  .  .  467  786 
General  observations  on  the  subject  of  this  section  .  .  468  787 
No  form  of  judicial  evidence  is  infallible  .  .  .  468  787 
Fallacy  of  the  maxim,  "  Facts  can  not  lie "  .  .  .  469  788 
Cautions  to  tribunals  re.-pecting  presumptive  evidence  470  789 
Superstitious  notions      .......  471  790 

Chapter  III.     Primary  and  secondary  evidence             ...  794 

Exaction  of  original  evidence  .  ...  472  794 
General   rule — Secondary   evidence   not    receivable    until 

the  non-production  of  the  primary  is  accounted  for  472  794 


CONTENTS. 


PARACKAM 

Whether  this    principle   extends  to   evidence   extra 

causam      ........     473 

Answers  of  the  judges  in  Queen  Caroline's  case     473 


Examination  of  them 
Resolutions  of  the  judges  under  6  &  7  Will 

c.  114 

Practice  since  those  resolutions 
Common  Law  Procedure  Act,  1854 — 17  &  iS  Vict 

125,  ss.  24, 103 

2S  Vict.  c.  iS,  ss.  I,  5 

Secondary  evidence    ....... 

1.  When  admissible 

2.  Nature  of 

No  degrees  of . 
Exceptions  to  the  rule  requiring  primary  evidence     . 


474-73 
4, 

•  479 

480 


481 
481 
4S2 
482 
433 
483 
484 
484 


1.  Where  production  physically  impossible     . 

2.  Where  production  highly  inconvenient  on  physical 

grounds        . 484 

3.  When   production  highly  inconvenient   on  moral 

grounds— Public  documents          .         .         .         .  485 
Different  sorts  of  copies  used  for  proof  of  docu- 
ments   486 

Proof  of  public  documents 487 

14  &  15  Vict.  c.  99,  s.  14 487 

Special  modes  of  proof  of  public  documents  pro- 
vided by  modern  statutes       ....  4S8 
In  general  cumulative,  not  substitutionary  .  488 

4.  Appointments  of  public  officers      ....  4S9 

5.  Examinations  on  the  voir  dire     ....  490 
Circumstantial  evidence  not  affected  by  the  rule  requiring 

primary  evidence 491 

Nor  self-disserving  evidence  ......  491 

Chapter  IV.     Derivative  evidence  in  general       .... 

Infirmity  of  derivative  or  second-hand  evidence     .         .  492 

Forms  of  it 492 

General  rule — Not  receivable  as  evidence  in  causa        .  493 

Reasons  commonly  assigned  for  this  ....  493 

True  grounds  of 494 

Maxim  "  Hearsay  is  not  evidence" 495 

Inaccuracy  of  it 495 

Hearsay  often  confounded  with  res  gestae  .         .         .  495 

Common  rumor,  when  evidence      ....  495 
Exceptions  to  the  rule  excluding  derivative  or  second-hand 

evidence -         .  496       84a 

I.  Evidence  of  deceased   witness  on  former  trial  be- 
tween the  same  parties     .....  496       843 
9.  Matters  of  public  and  general  interest         .         .  497       843 
Must  be  "  ante  litem  motam "           ...  497       844 


PAGi 

795 
799 
8ox 

808 
809 

81c* 
810 
811 
811 
820 
820 
823 
823 

823 

824 

826 

829 
829 

829 
833 
833 
833 

833 
833 
835 
835 
835 
836 
836 
837 
839 
839 
840 
840 


CONTENTS. 


X'1 


).   Matters  of  redigree 

Must  be  "  ante  litem  motam  "... 

4.  Ancient  possession     ...... 

5.  Declarations  by  deceased  persons  against  their  in- 

terest ........ 

6.  Declarations  by  deceased  persons  in  the  regular 

course  of  business,  &c.  .... 

It  seems  need  not  be  in  a  written  form        . 

7.  Tradesmen's  books         .  ..... 

8.  Hooks  of  deceased  incumbent     .... 

9.  Dying  declarations         .         .         .  . 
Chapter  V.     Evidence  afforded  by  the  words  or  acts  of   other 


PARAGRAPH 

498 


498 

499 


501 
502 

503 
504 

505 


persons 


Maxim   "  Res  inter  alios  acta  alteri  nocere  non   debet  "     506 

Other  forms  form  of  it 5°° 

Extent  of  it. 506 

Distinction  between  "  res  inter  alios  acta"  and  derivative 

evidence 5°7 

The  maxim  does  not  exclude  proof  of  res  gestae    .         .         508 

Instances  illustrative  of  the  rule  "res  inter  alios,  acta,"  Sec.     509 

Indicative  evidence     .......     509 

Exceptions  to  the  rule    . 5 10 

Chapter  VI.     Opinion  evidence  ...... 

General  rule — opinion  evidence  not  receivable       .         .         51 1 

Meaning  of  the  rule 512 

Exceptions  to  the  rule  .         .         .         .         .         .         .         513 

1.  Evidence  of  "  experts  "  on  questions  of  science, 

skill,  trade,  &c.  ......         513-14 

Experts  in  French  law 515 

Present  state  of  our  law,  with  reference  to  pro- 
curing evidence  of      .... 
Scientific  evidence  received  with  too  little  discrimi 
nation  .  .... 


2.  Opinions  founded  on  complex  facts  which 
easily  be  brought  before  the  tribunal 
Chapter  VII.     Self-regarding  evidence 

Section  1.     Self-regarding  evidence  in  general 
Self-regarding  evidence      .... 
General  rule  .... 
Self-serving  evidence         .  . 

Self-disserving  evidence         . 
How  supplied     . 
By  Words 
Writing 

Signs  .         . 

Silence  . 

Different  kinds  of 

1.  Division  first     .  -       , 


can  not 


515 
516 

517 


518 

519 
520 

521 
521 
521 
521 
521 
521 
522 
522 


845 
847 
849 


500       849 


851 

852 
852 
853 
854 

856 

856 
856 
857 

857 
858 
861 
861 
862 
864 
864 
865 
867 

867 

888 

888 

889 

8)i 
894 
895 
895 
895 
396 

39*7 
S97 
397 
397 
897 
?97 
898 
898 


xu 


CONTENTS. 


1.  Judicial 

2.  Extra-judicial     ...•». 

2.  Division  second     ...... 

1.  Admissions        ...... 

2.  Confessions  ..... 

3.  Division  third 

1.  Plenary 

2.  Not  Plenary 

Admissible  as  primary  evidence  of  written  documents 

But  not  to  prove  the  execution  of  a  deed,  except 
under  the  17  and  t8  Vict.  c.  125 
To   whom    self-disserving    statements,    &c,  may  be 
made     ........ 

State  of  mind  of  party  making  self-disserving  state- 
ment, &c 

Drunkenness  ..... 

Talking  in  sleep  ..... 

Unsoundness  of  mind       .... 
Self-disserving  statements  made  under  mistake 

Of  fact 

Of  law 

By  whom    self-disserving   statements,    &c,  may  be 

made 

Section  2.     Estoppels      ..... 

Nature  of        ...... 

Use  of . 

Principal  rules  relative  to 

1.  Must  be  mutual  or  reciprocal 

2.  In  general  only  affects  parties  and  privies 

3.  Conflicting  estoppels  neutralize  each  other     . 
Different  kinds  of  . 

1.  Estoppels  by  matter  of  record        .... 

Pleading     .         

Admissions  in  pleadings 

2.  Estoppels  by  deed 

Recitals . 

3.  Estoppels  by  matter  in  pais         .... 

How  made  available  ....... 

Whether   "  Ailegans    suam    turpitudinem   non   est   audi- 

endus  "  is  a  maxim  of  the  common  law 
Section  3.     Self-disserving  statements  in  criminal  cases 
Sub-section  1.     Estoppel  in  criminal  cases 

1.  Judicial  confession 

2.  Pleading 

3.  Collateral  matters 

Sub-section  2.     Admissibility   and    effect   of    extra-judicial 

self-criminative  nts 

Admissibility  of  cm,  ial  self-criminative  statements 


PARAGRAPH 

522 


522 
523 
523 
523 
524 
524 
524 

525 
527 

528 

529 

529 
529 
529 
530 
530 
530 

531 

532 

533 
534 
535 
535 
536 
537 
533 
539 
540 
541 
542 
542 
543 
544 

545 
547 
543 
543 
549 
550 


551 


PAGH 
898 
898 
898 
898 
898 
899 
899 
899 
899 

906 

907 

911 

913 
914 

9l6 

917 

917 
917 

917 
919 
919 
921 
922 
922 
923 

923 
923 
923 
923 
926 

927 
929 

930 

934 

937 
943 
943 

943 
944 
945 

946 
946 


CONTENTS. 


Xlll 


Must  be  made  voluntarily,  or  at  least  freely 
Effect  of  when  received  ..... 

Not  conclusive    ....... 

If  believed  sufficient  without  other  evidence  . 
Caution         ....... 

Sub-section  3.     Infirmative  hypotheses  affecting  self-cvimi 
native  evidence ..... 

Infirmative  hypotheses  affecting  self-criminative  evidence 
Continental  practice    ....... 

Arguments  in  favor  of  judicial  interrogation  . 

Arguments  against  it 

False  self-criminative  statements  , 

Motives  for,  sometimes  impossible  to  ascertain   . 
Two  classes  of  ...... 

1°.  Resulting  from  MISTAKE 

1.  Of  fact 

2.  Of  law       ...... 

2°.  In  expectation  of  BENEFIT  . 

1.  To  escape  vexation  .... 

2.  From  collateral  objects 

1.  Relating  to  the  party  himself    . 

1.  To     stifle     inquiry    into    othe 

matters     .... 

2.  Tsedium  vitae  ... 

3.  Relation  between  the  sexes 

4.  Vanity 

5.  Other  instances  . 

2.  When  other  parties  are  involved    . 

1.  Desire  of  benefiting  others 

2.  Desire  of  injuring  others 
Confessions  of  impossible  offenses 

Additional    infirmative  hypotheses  in  extra-judicial 
confessorial  statements  .... 

1.  Mendacity        ....... 

2.  Misinterpretation 

3.  Incompleteness 

Non-responsion       ........ 

Evasive  responsion    ........ 

False  responsion    ........ 

Legitimate  use  of   cases  of  false   self-criminative   state- 
ments ......... 

Chapter  VIII.     Evidence  rejected  on  grounds  of  public  policy 
Evidence  rejected  on  grounds  of  public  policy 
Matters  thus  excluded  ....  ... 

1°.  Political 


FARAGRAPH 

551 
552 
552 

553 
553 


2°.  Judicial 


1.  Grand  jurors 

2.  Petty  jurors 


554 
555 
556 
557 
559 
559 
560 
££o 
561 
562 

563 
563 
5'65 

565 

565 
566 

567 

563 

569 

570 
570 
57i 
572 

573 
573 
573 
573 
574 
575 
576 

577 

578 
578 
578 
579 
579 
580 


PAGB 
946 

943 
948 
948 

949 

950 
950 
953 
955 
956 

959 
959 
959 
959 
959 
960 
961 
961 
963 
953 

963 
963 
964 
964 

965 
966 
966 
967 
967 

97i 
97i 
973 

973 
974 
976 
976 

977 
973 
978 
978 
973 
980 
980 
980 


XIV 


CONTENTS. 


3°.   Professional 

1.  Communications  to  legal  advisers    . 

2.  Communications    to    medical    men  —  not 

privileged 

3.  Communications     to     spiritual     advisers — 

doubtful         ...... 

4°.  Social 

1.  Husband  and  wife       . 

16  .V  17  Vict.  c.  83      . 

2.  Secrets  of  business  or  friendship — not  pro- 

tected   .  

Rejection  of  evidence  tendered  for  expense,  vexation,  or 
delay      .......... 

Chapter  IX.     Authority  of  res  judicata 

Maxim  "  Rex  judicata  pro  veritate  accipitur" 

Res  judicata  . 

Difference  between  the  substantive  and  judicial  por- 
tions of  a  record     ...... 

Judgments  null  in  respect  of  what  is  contained  in  them 
Verdicts      ......... 

Awards    . 

Cases  where  the  maxim  applies  ..... 

1.  The  thing  must  be  the  same        .... 


PARAGRAPH      PAG< 

•   5S7 


537 
532 

533 
5S6 
5S6 
5S6 

5S6 
5S7 

583 
589 

59° 
59i 
59i 

5Qi 
592 
592 


2.  The  person  must  be  party  or  privy  to  the  judgment  592 

Exceptions  .........  593 

1.  Judgment-;  in  rem             ......  593 

2.  Other  instances           ......  593 

3.  Judgments   to  be  conclusive  must   be  pleaded,   if 

there  be  opportunity            .....  594 

4.  Judgments  may  be  impeached  for  fraud      .         .  595 
Chapter  X.     Quantity  of  evidence  required        ....  595 

General   rule — No  particular   number   of  instruments  of 

evidence  required  for  proof  or  disproof           .         .  596 
Almost  peculiar  to  the  common  law  of  England     .  597 
Arguments   in   favor  of  requiring  a  plurality  of  wit- 
nesses     .........  597 

Arguments  against  it 597 

Origin  of  the  rule        .         .         .         .         .         .         .559 

-inceptions  justifiable  in  certain  cases    ....  600 

JS.tcepiions  to  the  general  rule 602 

i°.  At  common  law           .....  603 

1.  Prosecutions  for  perjury         .         .  603 

Reason   usually  assigned  for  this   ex- 
ception    605 

True  reason    .....  606 
Amount  of   evidence   required  from 

each  witness,  or  proof    .         .         .  608 

2.  Proof  of  wills  .....  611 


985 
985 

987 

989 
994 
994 
995 

996 

996 
997 
997 
997 

998 
1000 
1001 
1002 
1002 
1 002 
1003 
1003 
1004 
1004 

1005 
1005 
100S 

ioc3 
1009 

1010 
1010 
1015 
1015 
1016 
1016 
1017 

1018 
1019 

102a 
1027 


CONTENTS. 


xv 


PARAGRAPH  PAG»   - 

Trial  by  witnesses         ....  612  1029 

4.  Claims  of  villenage  or  niefty    .         .  614  1032 

«•    Created  by  statute 615  1032 

1.  Trials  for  treason   and   misprision  of 

treason 615  1033 

Reasons  for  this  alteration  of  the  com- 
mon law 618  1035 

Objections  to  it  .         .         .         .  619  1037 

Fallacy  of 619  1037 

Two  witnesses  not  requisite  to  prove 

collateral  matters       ....  620  1039 

2.  Other  statutory  exceptions         .         .  621  1040 
When  two  witnesses  are  required,  their  credit  is  to  be  de- 
termined by  the  jury 622  1043 

BOOK  IV. 

FORENSIC  PRACTICE  AND   EXAMINATION  OF  WITNESSES. 

Part  I.     Forensic  practice  with  respect  to  evidence         .         .         .  1044 

Rules  which  regulate  forensic  practice  respecting  evidence  623  1044 

Division      .........  623  1044 

Chapter  I.     Proceedings  previous  to  trial         ....  IC45 

Section  I.     Inspection  of  documents  in  the  custody  or  under 

the  contract  of  the  opposite  party         .         .         .  624  1045 

At  common  law        .......  624  1045 

14  &  15  Vict.  c.  99,  s.  6 624  1050 

Section  2.     Discovery,  &c.  of  documents  in   the  possession  or 

power  of  the  opposite  party  ....  625  1051 

Section  3.     Inspection  of  real  or  personal  property        .         .  625a  1052 

Section  4.     Inspection  in  the  Court  of  Admiralty    .         .         .  625b  1052 
Section  5.     Inspection   under  patent  law — 15  &  16  Vict.  c.  83, 

s.  42  626  1053 

Section  6.     Exhibiting  interrogatories  to  a  party  in  the  cause  627  1053 

Section  7.     Admissions  before  trial       .....  630  1055 

Chapter  II.     Trial  and  its  incidents  1057 

I.  Course  of  a  trial         .' 631  1058 

17  &  18  Vict.  c.  125,  s.  18 631  1059 

28  &  29  Vict.  c.  iS,  s.  2  ......  631  1059 

Counsel  in  criminal  cases  .  ....  632  1061 

Ancient  practice 632  1061 

Alterations  in  more  recent  times         ....  633  1064 

7  &  8  Will.  3,  c.  3 633  1064 

20  Geo.  2,  c.  30 633  1065 

39  &  40  Geo.  3,  c.  93 633  1065 

5  &  6  Vict.  c.  51,  s.  1 633  1065 

Modern  practice  in  felony         ....  634  1065 

6  &  7  Will.  4,  c.  114  634  1065 

II.  Principal  incidents  of  a  trial  .         .         .  636  1066 


xvi  CONTENTS. 

PAX  AGKArH     PAC-S 

1.  Ordering  witnesses  out  of  court          .                  .        .  636  1067 

2.  Order  of  beginning,  or  right  to  begin  .         .         .  637  1068 

Erroneous  ruling  relative  to,  when  rectified    .         .  638  1071 

Ad  vantage  and  disadvantage  of  having  to  begin  629  1072 

3.  Rule  against  stating  facts  without  offering  evidence 

of  them       ,                  640  1072 

Matters  of  history 640  1072 

4.  Practice  respecting  "  Leading  questions "          .         .  641  1074 

General  rule 641  1074 

Exceptions 642  1076 

Expediency  of  leading,  when  allowable        .         .  643  1077 

5.  Discrediting  the  adversary's  witnesses         .         .         .  624  1077 

1.  Evidence  of  general  bad  character  for  veracity  644  1078 

2.  Statements  by  witness  inconsistent  with  his  evi- 

dence      644  1073 

17  &  lS  Vict.  c.  125,  ss.  23,  103     .         .         .  644  1079 

28  Vict.  c.  18,  ss.  4,  I 644  1079 

3.  Misconduct    connected    with    the    proceedings  644  1070 

6.  Discrediting  party's  own  witnesses          .         .         .  645  10S0 

1.  At  common  law  . 645  1082 

2.  17  &  iS  Vict.  c.  125,  ss.  22,  103       .         .         .  645  10S3 

Meaning  of  "adverse"  in  this  enactment      .  645  10S4 

28  Vict.  c.  18,  ss.  3,  1 645  1084 

7.  Adjournment  of  trial .......  646  10S4 

17  &  iS  Vict.  c.  125,  ss.  19,  103         .         .         .  646  1085 

8.  Ways  of  questioning  the   ruling  of  a  tribunal   on 

evidence 647  1085 

1.  In  civil  cases 647  1085 

1.  Pill  of  exceptions .         ,         .         .         .  647  1085 

2.  New  trial 647  1086 

2.  In  criminal  cases  ......  648  10S6 

11  &  12  Vict.  c.  78 648  ICJJ 

Fart   II    Elementary  rules  for  conducting  the  examination  and 

cross-examination  of  witnesses         .         .         .  1088 

Design  of  this  Part                  649  10S8 

An  objection  angered 650  10S9 

"  Examination,"  and   "  cross-examination  "  or  "examina- 
tion ex  adverso"        .......  651  1090 

Examination  of  witnesses  favorable   to   the  cause  of  the 

interroga                 ........  652  ioqi 

Examination  of  witnesses  whose  disposition  towards   the 

cause  of  the  interrogator  is  unknown  to  him       .         .  652  1092 

1  Cross-examination,"  or  "  examination  ex  adverso"         .  653  1092 

1°.  Testimony  false  in   toto             ....  654  1095 

I.  Where  the    fact    deposed  to  is  physically  im- 

possible             654  1095 

3.  Where  the  fact   deposed  to  is  improbable,  or 

morally  impossible             ....  655  1098 


«  1 


CONTENTS.  xvii 

PARAGRAPH  PAGH 

3°.  Misrepresentation               656  iogg 

1.  Exaggeration                  °56  1099 

2.  Evasion 657  1099 

1.  Generality  and  indistinctness    .        .  657  10^9 

2.  Equivocation  .  .  .  .  657  1099 
Effect  of  interest  and  bias  in  producing  untrue  testimony  658  1100 
General  observations  as  to  the  course  of   cross-examin- 

tion • 

Dangers  of  it 660  1 102 

Talkative  witnesses    ...                         .        .  661  1103 
Course  of,  should  be  subordinate  to  general  plan  for 

the  conduct  of  the  cause        .                 ...  662  1104 

C*ttdu«oa 663  1105 

a 


659     IICC 


THE 


PRINCIPLES   OF   EVIDENCE 


PART  II. 

THE  SECONDARY  RULES  OF  EVIDENCE. 

292.  The  secondary  rules  of  evidence,  as  has  been 
already  stated,  are  those  rules  which  relate  to  the 
modus  probandi,  or  mode  of  proving  the  matters  that 
require  proof,  (a)  and  for  the  most  part  only  affect 
evidence  in  causa,  (b)  The  fundamental  principle  of 
the  common  law  on  this  subject  is,  that  the  best  evi- 
dence must  be  given — a  maxim  the  general  meaning 
of  which  has  been  explained  in  a  former  part  of  this 
work,  (c)  In  certain  cases,  however,  peculiar  forms 
of  proof  are  either  prescribed  or  authorized  by  statute. 
We  propose  to  treat  the  whole  matter  in  the  following 
order : 

1.  Direct  and  circumstantial  evidence. 

2.  Presumptive  evidence,  Presumptions,  and  Fie 

tions  of  law. 

3.  Primary  and  Secondary  evidence. 

4.  Derivative  evidence  in  general. 

5.  Evidence  supplied  by  the  acts  of  third  parties 

(a)  Supra,  §  249.  (f)  Bk.  I,  pt.  §§  87  et  seq. 

(*)Bk.  i.pt.  1,  §86, 
li.— 1 


128      SECONDARY    RULES    OF    EVIDENCE, 

6.  Opinion  evidence. 

7.  Self-regarding  evidence, 

8.  Evidence  rejected  on  grounds  of  public  policy 

9.  Authority  of  Res  judicata. 

10.  Quantity  of  evidence  required. 


DIRECT    AND     CIRCUMSTANTIAL.         5*9 


CHAPTER    I 


DIRECT    AND    CIRCUMSTANTIAL    EVIDENCE. 


PARAGRAPH 

Two  forms  of  judicial  evidence         .         .         .      '  .         .         .         .  293 

Direct  evidence  .  ........  293 

Circumstantial  evidence  ...         ...»  293 

Conclusive 293 

Presumptive 293 

Direct  and  circumstantial  evidence  equally  admissible  .         .         .  294 

Comparison  between  direct  and  presumptive  evidence  .         .  295 

Advantages  of  direct  over  presumptive  evidence       .         .         .  295 

Advantages  of  presumptive  over  direct  evidence  .         .  295 

293.  All  judicial  evidence  is  either  direct  or  cir- 
cumstantial. By  "  direct  evidence  "  is  meant  when  the 
principal  fact,  or  factum  probandum,is  attested  directly 
by  witnesses,  things,  or  documents.  To  all  other  forms 
the  term  "  circumstantial  evidence  "  is  applied  ;  which 
may  be 'defined,  that  modification  of  indirect  evidence, 
whether  by  witnesses,  things,  or  documents,  which  the 
law  deems  sufficiently  proximate  to  a  principal  fact  or 
factum  probandum,  to  be  receivable  as  evidentiary  of 
it.1    And  this  also  is  of  two  kinds,  conclusive  and  pre- 

*E.g-,  the  law  does  not  re  mire,  in  order  to  justify  the  inflj 
ence  of  legal  guilt,  in  cases  of  circumstantial  evidence,  that  the 
existence  of  the  inculpatory  facts  must  be  absolutely  in  compa- 
tible with  the  innocence  of  the  accused,  and  incapable  of  ex- 
planation upon  any  other  reasonable  hypothesis  than  that  of 
his  guilt.  To  require  the  facts  to  be  absolutely  incompatible 
with  the  innocence  of  the  accused,  is  to  require  proof  of  his 
guilt  beyond  the  possibility  of  a  doubt.  The  law  requires  that 
the  facts  shall  not  only  be  consistent  with  the  guilt  of  the 
accused,  but  inconsistent  with  any  other  rational  conclusion. 
A  higher  degree  of  certainty,  in  establishing  the  guilt  of  the 
accused,   by   means    of  circumstantial    evidence,   can    not   be 


530      SECONDARY    RULES     OF    EVIDENCE. 

sumptive.  "  Conclusive,"  when  the  connection  between 
the  principal  and  evidentiary  facts — the  factum  proban- 
dum  and  factum  probans — is  a  necessary  consequence 
of  the  laws  of  nature ;  as  where  a  party  accused  of  a 
crime  shows  that,  at  the  moment  of  its  commission, 
he  was  at  another  place,  &c. ;  "  Presumptive,"  when  the 
inference  of  the  principal  fact  from  the  evidentiary  is 
only  probable,  whatever  be  the  degree  of  persuasion 
which  it  may  generate,  (a)  ] 

(a)  Introd.  pt.  i,  §  27. 

required  without  rendering  such  evidence  valueless.  People 
v.  Murray,  41  Cal.  66.  Circumstantial  evidence,  in  order  to 
convict,  must  be  such  as  will  produce  nearly  the  same  degree 
of  certainty  as  that  which  arises  from  direct  testimony.  Peo- 
ple v.  Padell,  42  Cal.  535  ;  and  see  Smith  v.  Croom,  7  Fla.  81  ; 
where  in  a  civil  case  where  the  question  depended  upon  the 
survivorship  of  several  persons  lost  by  shipwreck,  it  was  held 
that  the  certainty  need  not  reach  that  point  which  would 
exclude  the  possibility  that  the  fact  be  otherwise,  but  only  that 
it  would  be  of  such  a  degree,  included  by  appropriate  evi- 
dence, as  will  produce  moral  conviction.  People  v.  Dick,  32 
Cal.  215  ;  People  v.  Crowin,  34  Id.  201,  ante,  vol.  1,  note  1  ; 
and  see  various  constructions  of  which  the  rule  stated  in  the 
text  admits,  p.  364;  Ballon  v.  Humphrey,  8  Kan.  219;  People 
v.  Videto,  1  Parker  (Cr.)  603;  McCan  v.  State,  21  Miss.  (13 
Sur.  &  M.)  471  ;  State  v.  Williams,  54  Mo.  170  ;  McGregor  v. 
State,  16  Ind.  9;  Schusler  v.  State,  29  Ind.  394;  Findley  v. 
State,  5  Blatchf.  576;  Sumner  v.  State,  Id.  579;  United  States 
v.  Douglass,  2  Blatchf.  207  ;  United  States  v.  Martin,  2  Mc- 
Lean, 256  ;  United  States  v.  Cole,  8  I'd.  5 13,  601 ;  United  States 
v.  Gilbert,  2  Sumn.  19;  United  States  v.  Gooding,  12  Wheat. 
460-469  ;  Nelson  v.  United  States,  Pet.  C.  C.  235  ;  see  also 
Willis  v.  The  Rationale  of  Circumstantial  Evidence. 

1  1  Greenleaf,  §  14.  A  conviction  may  be  founded  upon 
circumstantial  only,  if  they  are  such  as  are  inconsistent  with 
the  innocence  of  the  party — if  they  arise  out  of  his  own  con- 
duct and  remain  unexplained.  The  Robert  Edwards,  6  Wheat. 
187. 

Evidence  of  special  facts, — Held,  under  the  circumstances, 
direct  and  not  circumstantial  evidence.  United  States  v. 
Douglass,  2  Blatchf.  207.     But  in   a  capital   case,  if  the  testi- 


DIRECT    AND     CIRCUMSTANTIAL.         53 r 

294.  As  regards  admissibility,  direct  and  circum- 
stantial evidence  stand,  generally  speaking,  on  the 
same  footing.  It  might  at  first  sight  be  imagined  that 
the  latter,  especially  when  in  a  presumptive  shape,  is 
inferior  or  secondary  to  the  former,  and  that,  by  anal- 
ogy to  the  principle  which  excludes  secondhand  and 
postpones  secondary  evidence,  (b)  it  ought  to  be 
rejected,  at  least  when  direct  evidence  can  be  procured. 
The  law  is,  however,  otherwise,  and  a  little  reflection 
will  show  the  difference  between  the  cases.  Second- 
hand and  secondary  evidence  are  rejected,  because 
they  derive  their  force  from  something  kept  back — the 
non-production  of  which  affords  a  presumption  that  it 
would,  if  produced,  make  against  the  party  by  whom 
it  is  withheld.1     But  circumstantial  evidence,  whether 

(6)  See  infra,  ch.  4  and  3. 

mony  before  the  jury  does  not  prove  the  guilt  of  the  defend- 
ant beyond  a  rational  doubt,  the  fact  that  the  defendant  does 
not  disprove  circumstances  proved  before  them,  will  give 
additional  weight  to  such  circumstances  as  are  proved,  unless 
the  jury  believe  the  defendant  has  the  means  of  disproving 
them  if  they  be  false.  In  a  capital  case,  if  the  jury  be  satis- 
fied from  the  evidence,  though  circumstantial,  beyond  a 
reasonable  doubt  of  the  defendant's  guilt,  they  may  convict 
him.  Evidence  proving,  or  tending  to  prove  that  it  was  im- 
possible that  another  should  be  the  guilty  person,  is  not  abso- 
lutely necessary.     Findley  v.  State,  5  Blatchf.  (Ind.)  579. 

1  No  evidence  is  to  be  received  which  pre-supposes  greater 
evidence  behind,  in  the  party's  possession  or  power.  Tayloe 
v.  Riggs,  1  Pet.  591.  S.  P.  Cloud  v.  Patterson,  1  Stew.  (Ala.) 
394;  Newsom  v.  Jackson,  26  Ga.  241  ;  Isabella  v.  Pecot,  2  La. 
Ann.  387  ;  Rachel  v.  Rachel,  4  Id.  500  ;  Hall  v.  Acklen,  9  Id. 
219;  Morton  v.  White,  16  Me.  53  ;  Greeley  v.  Quimby,  22  N. 
H.  (2  Fost.)  335  ;  Cotton  v.  Campbell,  3  Tex.  493  ;  Davis  v. 
Robertson,  Mill  (S.  C),  Const.  71.  Unless,  of  course,  the  non- 
Droduction  of  the  evidence  be  accounted  for.  Hampton  v. 
Windham,  2  Root  (Conn.)  199.  Patterson  v.  Doe,  8  Blackf. 
(Ind.)  237;  Williams  v.  Jones,  12  Ind.  561;  Union  Bank  v. 
Ellis,  3   La.    Ann    188;  Campbell  v.   Wallace,  3  Yeates   (Pa.) 


532      SECONDARY    RULES     OF    EVIDENCE. 

conclusive  or  presumptive,  is  as  original  in  its  nature 
as  direct  evidence ;  they  are  distinct  modes  of  proof, 
acting  as  it  were  in  parallel  lines,  wholly  independent 
of  each  other.  Suppose  an  indictment  against  A  for 
the  murder  of  B,  the  apparent  cause  of  death  being  a 
wound  given  with  a  sword.  If  C  saw  A  kill  B  with 
a  sword,  his  evidence  of  the  fact  would  be  direct.  If, 
on  the  other  hand,  a  short  time  before  the  murder,  D 
saw  A  walking  with  a  drawn  sword  towards  the  spot 
where  the  body  was  found,  and  after  the  lapse  of  a 
time  long  enough  to  allow  the  murder  to  be  commit- 
ted, saw  him  returning  with  the  sword  bloody  ;  these 
circumstances  are  wholly  independent  of  the  evidence 
of  C — -they  derive  no  force  whatever  from  it — and, 
coupled  with  others  of  a  like  nature,  might  generate 
quite  as  strong  a  persuasion  of  guilt.  Besides,  the 
rule  that  facts  are  provable  by  circumstances  as  well 
as  by  direct  testimony,  has  a  considerable  effect  in 
preventing  guilty  or  dishonest  parties  from  tampering, 
or  making  away  with  witnesses  and  other  instruments 
of  evidence,  which  they  would  be  more  likely  to  do, 
if  they  knew  that  the  only  evidence  that  the  law 
would  receive  against  them,  was  contained  in  a  few 
easily- ascertained  depositories.  Still,  the  non-produc- 
tion of  direct  evidence  which  it  is  in  the  power  of  a 
party  to  produce,  is  matter  of  observation  to  a  jury, 
(V)  as,  indeed,  is  the  suppression  of  any  sort  of  proof. 
And  here  it  is  essential  to  observe  that  the  process 
of  reasoning  evidencing  any  fact,  principal  or  subal- 

(c)  I  Stark.   Ev.  57S,    3rd  Edition;      340;     3    Benth.   Judicial     Evidence. 
Id.    874,    4th    Edition  ;    2    Ev.    Poth.      230. 

271  ;  Felton  v.  McDonald,  4  Dev.  (N.  C.)  L.  406;  Wilson  v. 
Young,  2  Cranch  C.  Ct.  33,  United  States  v.  Lynn,  Id.  309; 
Hutchinson  v.  Peyton,  Id.  365  ;  Patriotic  Bank  v.  Coote,  3  Id. 
169;  Conway  v.  State  Bank,  13  Ark.  48;  De  Taslett  v.  Crou- 
sillat,  2  Wash    132. 


DIRECT    AND     CIRCUMSTANTIAL.         533 

ternate,  may  be  more  or  less  complex,  longer  or 
shorter.  The  inference  may  be  drawn  from  one  evi- 
dentiary fact,  or  from  a  combination — usually,  although 
perhaps  not  very  accurately,  termed  a  chain,  (d)  of 
evidentiary  facts,  (e)  Again,  the  facts  from  which  the 
inference  is  drawn,  may  be  either  themselves  proved 
to  the  satisfaction  of  the  tribunal,  or  they  may  be 
merely  consequences,  necessary  or  probable,  as  the  case 
may  be,  of  other  facts  thus  proved.  (/")  ' 

{d)  "  It  has  been  said  that  circum-  be  insufficient  to  sustain  the  weight 

stantial    evidence   is  to  be  considered  but   three   stranded    together   may  be 

as  a  chain,  and  each  piece  of  evidence  quite  of  sufficient  strength."     Ter  Pol- 

as  a  link  in  the  chain  ;  but  that  is  not  lock,  C.  B.,  in  Reg.  v.  Exall,  4  F.  & 

so,  for  then,  if  any  one  link  broke,  the  F.  922,  929. 

chain  would  fall.     It  is  more  like  the  (e)  3  Benth.  Jud.  Ev.  223. 

case   of  a   rope    composed  of  several  (/)  2  Ev.  Poth.  532  ;  3  Benth.  Jud. 

cords.     One  strand  of  the  cord  might  Ev.  3. 

1  A  presumption  is,  says  Starkie  (1  Evid.  478  ;  3  Id.  1235, 
1246),  an  inference  made  solely  by  virtue  of  previous  experi- 
ence, and  independently  of  any  process  of  reason  in  the  par- 
ticular instance — that  is  to  say,  a  presumption  is  the  judgment 
or  conclusion  to  which  the  mind  of  any  person  of  ordinary 
intelligence  will  arrive  inevitably  and  at  once  upon  a  state- 
ment of  certain  facts,  before  those  facts  are  examined  by  the 
light  of  other  facts,  or  ol  deliberate  interpretation.  Legal 
presumption  must  be  base!  on  facts,  not  on  other  presump- 
tions. Pennington  v.  Yell,  n  Ark.  212.  McAlan  v.  McMur- 
ray,  58  Pa.  St.  289;  Richmond  v.  Aiken,  25  Vt.  324;  Tanner 
v.  Hughes,  53  Pa.  St.  289.  Where  presumptions  are  not  estab- 
lished by  law,  they  must  be,  to  be  valuable,  weighty,  precise, 
and  consistent.  The  known  fact  upon  which  the  presumption 
reposes,  must  draw  with  it  the  unknown  fact  as  an  almost 
necessary  consequence.  This  presumption  must  be  precise, 
and  not  susceptible  of  application  to  other  circumstances  be- 
sides those  it  is  sought  to  establish.  Bach.  v.  Cohn,  3  La.  An. 
103.  A  man's  actions  are  facts  which  are  supposed  to  be  true, 
and  as  against  himself  or  those  he  represents,  his  actions  and 
repiesentations  will  be  supposed  to  be  true.  Gales  v.  Christy, 
4  La.  Ann.  293.  They  are,  in  all  cases,  evidence  of  the  fact, 
and  where  he  induces  another  to  act  on  them,  and  can  not 
show  the  contrary  without  bad  faith,  they  are  usually  abso- 
lutely conclusive.     (Id.)     Every  system    of  jurisprudence  has 


534     SECONDARY    RULES    OF    EVIDENCE. 

295.   Direct  and  presumptive  evidence  (using  the 
words  in    their    technical  sense)  being,  as  has   been 
shown,  distinct  modes  of  proof,  have  each  their  pecu 
liar  advantages  and  characteristic  dangers.     Abstract- 
edly speaking,  presumptive  evidence  is  inferior  to  direct 

enacted  certain  presumptions,  which  will  be  found  noticed  ii. 
their  proper  place,  but  in  the  creation  of  presumptions  sucii 
as  we  are  considering,  all  known  and  positive  laws  of  nature 
and  science,  and  all  facts  forming  a  part  of  the  experience  and 
common  knowledge  of  the  day,  such  as  for  instance  in  the 
case  of  a  missing  steamship  on  a  voyage  across  the  Atlantic 
the  usual  time  occupied  by  such  a  voyage  must  be  taken  into 
the  account.  Oppenheim  v.  Ledwolf,  3  Sandf.  Ch.  571.  So, 
too,  where  a  calamity,  though  common  to  all,  consists  ol  a 
series  of  successive  events,  separated  from  each  other  in  po^nt 
of  time  and  character,  and  each  likely  to  produce  death  up  in 
the  several  victims,  according  to  the  degree  of  exposure  to  it, 
differences  of  age,  sex,  and  physical  strength  might  go  to 
making  up  the  presumption.  Smith  v.  Croom,  7  Fla.  81.  The 
Civil  Code  of  Louisiana,  in  a  case  of  this  kind,  adopts  the 
rule  of  the  French  code,  namely  that  under  the  age  of  fifteen, 
the  presumption  shall  be,  that  the  oldest  survived ;  while  of 
those  above  the  age  of  sixty,  the  youngest  shall  be  presumed 
to  have  survived.  Between  those  ages,  if  of  different  sexes, 
the  male  is  presumed ;  and  if  of  the  same  sex,  the  younger  is 
presumed  to  be  the  survivor.  Civil  Code  of  Louisiana,  art. 
930-933  ;  Digest  of  the  Civil  Laws  of  the  Territory  of  Orleans, 
art.  60-63.  See  Greenleaf  on  Evidence,  1,  §  30.  Courts  of 
common  law,  however,  have  generally  disinclined  from  adopt- 
ing this  presumption.  So  in  Coye  v.  Leach,  8  Mete.  (Mass.) 
371  :  where  a  father,  seventy  years  old,  and  his  daughter, 
thirty-three  years  old,  being  on  board  a  steamboat  that  was 
lost  at  sea,  both  perished  in  the  same  calamity,  and  no  special 
circumstances  were  known  which  tended  to  prove  that  one 
died  before  the  other,  held,  that  there  was  no  legal  presump- 
tion that  either  survived  the  other,  but  that  it  must  be  pre- 
sumed that  both  died  at  the  same  instant.  See  also  Moehring 
v.  Mitchell,  1  Barb.  Ch.  R.  265  :  where  a  husband,  wife,  and 
daughter  perished  at  sea  by  Mie  same  disaster,  and  there  was 
no  evidence  as  to  who  was  the  survivor,  it  was  held,  that  while 
there  was  no  presumption  that  the  daughter  survived  the 
mother,  and  that  semble,  it  would  be  presumed  that  the  husband 
survived  the  wife. 


DIRECT    AND     CIRCUMSTANTIAL.         535 

evidence,  seeing  that  it  is  in  truth  only  a  substitute  for 
it,  and  an  indirect  mode  of  proving  that  which  other- 
wise might  not  be  provable  at  all.  (g)  Hence  a 
given  portion  of  credible  direct  evidence,  must  ever  be 
superior  to  an  equal  portion  of  credible  presumptive 
evidence  of  the  same  fact.  But  in  practice  it  is,  from 
the  nature  of  things,  impossible,  except  in  a  few  rare 
and  peculiar  cases  to  obtain  more  than  a  very  limited 
portion  of  direct  evidence  as  to  any  fact,  especially  any 
fact  of  a  criminal  kind ;  and  with  the  probative  force 
of  such  a  limited  portion  of  direct  evidence,  that  of  a 
chain  of  evidentiary  facts,  forming  a  body  of  presump- 
tive proof,  may  well  bear  comparison.  When  proof  is 
direct,  as,  for  instance,  where  it  consists  of  the  positive 
testimony  of  one  or  two  witnesses  ;  the  matters  proved 
are  more  proximate  to  the  issue,  or,  to  speak  correctly, 
are  identical  with  the  physical  facts  of  it,  and  conse- 
quently leave  but  two  chances  of  error — namely,  those 
which  arise  from  mistake  or  mendacity  on  the  part  of 
the  witnesses ;  while  in  all  cases  of  merely  presump- 

(g)  Gilb.  Ev.   157,  4th  Ed.  ;    R.  v.       of  Presumptive  Proof,  p.  55. 
Burdett,  4  B.  &  A.  95,  123  ;    Theory 

1  See  ante,  vol.  1,  p.  65,  and  note  1,  p.  66.  Questions 
involving  the  value  of  circumstantial  evidence  will  always 
possess  a  peculiar  fascination  for  the  student  of  jurispru- 
dence. There  are  many  degrees  between  the  improbability 
and  the  demonstration  of  a  charge,  and  each  of  these  appeals 
with  different  force  to  differently  constituted  minds — may 
advance  with  examination  from  these  degrees  of  disbelief, 
doubt,  distrust,  conjecture  and  suspicion,  to  financial  convic- 
tion, and  each  step  must  be  carefully  studied.  The  law  pre- 
sumes the  minds  of  jurymen  to  be  at  the  outset  utterly  igno- 
rant of  circumstances,  or  at  least  of  any  construction  of 
which  the  circumstance  are  capable.  What  the  advocate  is  to 
do,  then,  is  to  so  group  these  circumstances,  to  so  introduce 
other  proof,  which  preceded  or  followed  them,  to  so  display 
all  these  in  their  true  relations  to  each  other,  and  in  the  scale 
of  probability,  as  to  lead  the  minds  of  the  triers  carefully  and 
surely  to  the  truth. 


536      SECONDARY    RULES    OF    EVIDENCE. 

tive  evidence,  however  long  and  apparently  complete 
the  chain,  there  is  a  third — namely,  that  the  inference 
from  the  facts  proved  may  be  fallacious.  (/£)  '  Besides, 
there  is  an  anxiety  felt  for  the  detection  of  crimes,  par- 
ticularly such  as  are  very  heinous  or  peculiar  in  their 
circumstances,  which  often  leads  witnesses  to  mistake 
or  exaggerate  facts,  and  tribunals  to  draw  rash  infer- 
ences ;  and  there  is  also  natural  to  the  human  mind,  a 
tendency  to  suppose  greater  order  and  conformity  in 
things  than  really  exists,  and  likewise  a  sort  of  pride 
or  vanity  in  drawing  conclusions  from  an  isolated  num- 
ber of  facts,  which  is  apt  to  deceive  the  judgment.  (7) 

{h)  3    Benth.  Jud.  Ev.  249  ;    Ph.  &      Preuves,  §  637. 
Am.    Ev.  459;    Bonnier,    Traite   des  (*)  Bacon,  Nov.  Organ.  Aphor.  45 

1  The  second  degree  in  evidence  of  the  scale  of  certainty, 
consists  of  information  derived  from  the  relation  and  infor- 
mation of  those  who  have  had  the  means  of  acquiring  actual 
knowledge  of  the  fact  from  actual  perception  of  the  same  by 
the  senses;  and  upon  knowledge  thus  derived  juries  must  in 
general  act.  The  third  degree  of  evidence  in  the  scale  of  cer- 
tainty comes  not  directly  from  him  who  knows  the  fact  by  the 
perception  of  his  senses,  but  from  one  who  learns  it  only  by 
the  assertion  of  another;  this  is  termed  "  hearsay  "  evidence. 
Hearsay,  though  accepted  in  common  life,  is  not  generally 
sufficient  in  a  court  of  justice.  But  this  rule  has  exceptions  ; 
e.  g.,  when  the  declaration  is  itself  a  fact,  and  a  part  of  the  res 
gestae,  the  objection  ceases.  If  the  declaration  illustrates  a 
question  and  can  be  regarded  as  a  circumstance  which  is  part 
of  the  transaction  itself,  receiving  importance  from  its  connec- 
tion with  the  circumstances,  apart  from  speaker's  credit,  it  is 
admissible.  Hence,  when  the  nature  of  a  particular  act  is 
questioned,  a  contemporary  declaration  by  the  party  who  does 
the  act  is  evidence  to  explain  it.  See  People  v.  Videto,  1 
Park.  (N.  Y.)  Cr.  603;  Vardeman  v.  Byrne,  8  Miss.  (7  How.) 
365  ;  Persons  v.  McKibben,  5  Ind.  261  ;  Duffield  v.  Delaney, 
36  111.  258  ;  Ingram  v.  Plasket,  3  Blackf.  (Ind.)  450  ;  Crane  v. 
Morris,  6  Pet.  598;  Kelly  v.  Gage,  6  Id.  662  ;  United  States  v. 
Wiggins,  14  Id.  334  ;  Bank  of  United  States  v.  Corcoran,  2 
Id.  121,  133;  The  Jane  v.  United  States,  7  Cranch,  363;  Cat- 
iin  v.  Gilders,  3  Ala.  536. 


DIRECT    AND     CIRCUMSTANTIAL.  537 

Sometimes,  also,  hasty  and  erroneous  conclusions,  in 
such  cases,  are  traceable  to  indolence  or  an  aversion  to 
the  patient  and  accurate  consideration,  of  minute  and 
ever-varying  particulars.  (/)  Accordingly,  the  true 
meaning  of  the  expressions  in  our  books  that  all  pre- 
sumptive evidence  of  felony  should  be  warily  pressed, 
admitted  cautiously,  &c.,  is,  not  that  such  evidence  is 
incapable  of  producing  a  degree  of  assurance  equal  to 
that  derivable  from  direct  testimony ;  but  that  tribu- 
nals should,  in  dealing  with  presumptive  evidence,  be 
upon  their  guard  against  the  peculiar  dangers  just  des- 
cribed.1 Such  are  its  disadvantages.  But  then,  on  the 
other  hand,  a  chain  of  presumptive  evidence,  has  some 
decided  advantages  over  the  direct  testimony  of  a  lim- 
ited number  of  witnesses.  These  are  thus  clearly  stated 
by  an  able  modern  writer:  (J£)  "  1.  By  including  in 
its  composition  a  portion  of  circumstantial  evidence, 
the  aggregate  mass  on  either  side  is,  if  mendacious, 
the  more  exposed  to  be  disproved.  Every  false  alle- 
gation being  liable  to  be  disproved,  by  any  such  noto- 
riously true  fact  as  it  is  incompatible  with  ;  the  great- 
er the  number  of  such  distinct  false  facts,  the  more  the 
aggregate  mass  of  them  is  exposed  to  be  disproved : 
for  it  is  the  property  of  a  mass  of  circumstantial  evi- 
dence, in  proportion  to  the  extent  of  it,  to  bring  a  more 
and  more  extensive  assemblage  of  facts  under  the  cos:- 
nizance  of  the  judge.2     2.  Of  that  additional  mass  of 

R.   v.   Hodge,  2  Lew.  C.  C.  227,   per  (/)  Burill,  Circ.  Ev.  207. 

Alderson,   B.  ;    Ph.    cS:  Am.  Ev.  459  ;  (IS)  3  Benth.   Jud.  Ev.  251-2.      Sea 

Burrill,    Circ.   Ev.  207.     See   further,  also   Faley's  Moral   Philosophy,  bk.  6, 

infra,  sect.  3,  subsect.  2.  ch.  9. 

1  The  life  or  liberty  of  a  person  can  not  be  legally  sacrificed 
on  the  ground  that  it  is  only  by  regarding  him  as  guilty,  that 
an  explanation  is  afforded  of  the  perpetration  of  a  proved 
offense.     Schusler  v.  State,  27  Ind.  394. 

"  Circumstantial  evidence  is  only  to  be  acted  upon  after  it 


538      SECONDARY    RULES     OF    EVIDENCE. 

facts,  thus  apt  to  be  brought  upon  the  carpet  by  cir- 
cumstantial evidence,  parts,  more  or  less  considerable 
in  number,  will  have  been  brought  forward  by  so  many 
different  deposing  witnesses.  But,  the  greater  the 
number  of  deposing  witnesses,  the  more  seldom  will  it 
happen  that  any  such  concert,  and  that  a  successful 
one,  has  been  produced,  as  is  necessary  to  give  effect 
to  a  plan  of  mendacious  testimony,  in  the  execution 
of  which,  in  the  character  of  deposing  witnesses,  divers 
individuals  are  concerned.  3.  When,  for  giving  effect 
to  a  plan  of  mendacious  deception,  direct  testimony  is 
of  itself,  and  without  any  aid  from  circumstancial  evi- 
dence, regarded  as  sufficient ;  the  principal  contriver 
sees  before  him  a  comparatively  extensive  circle,  within 
which  he  may  expect  to  find  a  mendacious  witness, 
or  an  assortment  of  mendacious  witnesses,  sufficient  to 
his  purpose.  But  where,  to  the  success  of  the  plan,  the 
fabrication  or  destruction  of  an  article  of  circumstan- 
tial evidence  is  necessary,  the  extent  of  his  field  of 
choice  may  in  this  way  find  itself  obstructed  by  obsta- 
cles not  to  be  surmounted." 

Lest  too  much  reliance  should  be  placed  on  these 
considerations,  it  is  important  that  to  observe  that  cir- 
cumstantial evidence  does  not  always  consist,  either  of 
a  large  number  of  circumstances  or  of  circumstances 
attested  by  a  large  number  of  witnesses  ;  and,  also, 
that  the  more  trifling  any  circumstance  is  in  itself,  the 
greater  is  the  probability  of  its  being  inaccurately  ob- 
served and  erroneously  remembered.  (/)     But,  after 

(/)  19  Ho.  St.  Tr.  74,  note. 

has  generated  full  conviction  ;  everything  calculated  to  illus 
trate  a  transaction   should  he  admitted,  since  the  conclusion 
depends  on  a  number  of  links,  which  alone  are  weak  but  taken 
together  are  strong,  and  able  to  conclude.     McCann  v.  State 
13  Smed.  &  M.  (21  Miss.)  471. 


DIRECT    AND     CIRCUMSTANTIAL.         539 

every  deduction  made,  it  is  impossible  to  deny  that  a 
conclusion,  drawn  from  a  process  of  well-conducted 
reasoning  on  a  mass  of  evidence  purely  presumptive, 
may  be  quite  as  convincing,  and  in  some  cases  far  more 
convincing,  than  one  arising  from  a  limited  portion  ol 
direct  testimony,  (pi)  1 

(in)  1  East,  P.  C.  223  ;    Annesley  v.      1430,  per  Mouteney,  B.  ;  Paley's  Mor. 
The  Earl  of  Anglesea,  17  Ho.  St.  Tr.      Philos.  bk.  6,  ch.  9. 

1  Consult  People  v.  Videto,  1  Parker,  Cr.  R.  603  ;  McGregor 
v.  State,  16  Ind.  9;  Sumner  v.  State,  /6  Blackf.  579;  Findley 
v.  State,  5  Id.  576;  Sumner  v.  State,  Id.  579;  United  States  v. 
Douglass,  2  Id.  207 ;  United  States  v.  Martin,  2  McLean,  256 ; 
State  v.  Coleman,  22  La.  An.  455  ;  People  v.  Phipps,  39  Cal. 
326  ;  Pitts  v.  State,  43  Miss.  472  ;  State  v.  Van  Winkle,  6  Nev. 
340  ;  Law  v.  State,  33  Tex.  37  ;  Wrath  v.  Norton,  Id.  192  ; 
Murrell  v.  State,  46  Ala.  89 ;  United  States  v.  The  Isla  de 
Cuba,  2  Cliff.  295  ;  Bullon  v.  Humphrey,  8  Kan.  219;  People 
v.  Padillia,  42  Cal.  535  ;  People  v.  Murray,  41  Id.  66  ;  United 
States  v.  Cole,  5  McLean,  513,  601  ;  United  States  v.  Gibert,  2 
Sumn.  19;  United  States  v.  Martin,  2  McLean,  256;  United 
States  v.  Gooding,  12  Wheat.  460,  469  ;  The  Slavers  (Reindeer), 
2  Wall.  383 ;  Nelson  v.  United  States,  Pet.  C.  Ct.  235  ;  La 
Nereyda,  8  Wheat.  108,  173;  United  States  v.  Douglass,  2 
Blatchf.  207  ;  United  States  v.  Martin,  2  McLean,  256.  Testi- 
mony is  not  synonymous  with  "evidence."  See  Harvey  v 
Smith,  17  lnd.  272. 


540      SECONDARY    RULES     OF    EVIDENCE. 


CHAPTER  II. 

PRESUMPTIVE    EVIDENCE,  PRESUMPTIONS   AND    FICTIONS 

OF    LAW. 

PARAGRAPH 

Design  of  this  chapter         ...  .....  296 

Probative  force  of  a  chain  of  presumptive  proof  ....  297 

Presumption •         .  298 

Original  signification  of         .......  299 

Legal  signification  of         .......  300 

Different  meanings  of  ........  301 

Explanation  of  certain  expressions  used  by  the  civilians  and  canonists  302 

Division  of  the  subject         .........  303 

296.  The  nature  and  admissibility  both  of  direct 
and  presumptive  evidence  having  been  considered  in 
the  preceding  chapter,  we  proceed  in  the  present  to 
examine  the  latter  more  in  detail,  together  with  the 
kindred  subjects  of  presumptions  and  fictions  of  law. 

297.  The  elements  or  links  which  compose  a  chain 
of  presumptive  proof,  are  certain  moral  and  physical 
coincidences,  which  individually  indicate  the  principal 
fact ;  and  the  probative  force  of  the  whole  depends  on 
the  number,  weight,  independence,  and  consistency  of 
those  elementary  circumstances. 

A  number  of  circumstances,  each  individually  very 
slight,  may  so  tally  with  and  confirm  each  other,  as  to 
leave  no  room  for  doubt  of  the  fact  which  they  tend 
to  establish.1     "  Infirmiora  (argumenta)  congreganda 

1  The  case  of  William  Richardson,  Dumfries,  a.  d.  1787 
(Burnett's  Criminal  Law  of  Scotland,  p.  524),  is  cited  by  the 
author  as  a  remarkable  instance  of  the  kind.  In  the  autumn 
cf  1786,  a  young  woman,  who  lived  with  her  parents  in  a  re- 
mote district  in  the  stewartry  of  Kircudbright,  was  one  day  left 


PRESUMPTIVE    EVIDENCE.  541 

sunt Singula  levia  sunt,  et  communia; 

universa,  vero  nocent,  etiamsi  non  ut  fulmine,  tamen 
ut  grandine."  (b)     Not  to  speak  of  greater  numbers, 

(i)  Quint.  Inst.  Orat.  lib.  5,  c.  12. 

alone  in  the  cottage,  her  parents  having  gone  out  to  their 
harvest-field.  On  their  return  home,  a  little  after  mid-clay, 
they  found  their  daughter  murdered,  with  her  throat  cut  in  the 
most  shocking  manner.  The  circumstances  in  which  she  was 
found — the  character  of  the  deceased,  and  the  appearance  of 
the  wound,  all  concurred  in  excluding  any  presumption  of 
suicide;  while  the  surgeons  who  examined  the  wound  were 
satisfied  that  it  had  been  inflicted  by  a  sharp  instrument,  and 
by  a  person  who  must  have  held  the  instrument  in  his  left 
hand.  On  opening  the  body,  the  deceased  appeared  to  have 
been  some  months  gone  with  child;  and  on  examining  the 
ground  about  the  cottage,  there  were  discovered  the  footsteps, 
seemingly  of  a  person  who  had  been  running  hastily  from  the 
cottage,  and  by  an  indirect  road,  through  a  quagmire  or  bog 
in  which  there  were  stepping-stones.  It  appeared,  however, 
that  the  person,  in  his  haste  and  confusion,  had  slipped  his 
foot,  and  stepped  into  the  mire,  by  which  he  must  have  been 
wet  nearly  to  the  middle  of  the  leg.  The  prints  of  the  foot- 
steps were  accurately  measured,  and  an  exact  impression  taken 
of  them  ;  and  it  appeared  that  they  were  those  of  a  person  who 
must  have  worn  shoes,  the  soles  of  which  had  been  newly 
mended,  and  which,  as  is  usual  in  that  part  of  the  country,  had 
iron  knobs  or  nails  in  them.  There  were  discovered  also, 
along  the  track  of  the  footsteps,  and  at  certain  intervals,  drops 
of  blood  ;  and  011  a  stile  or  small  gateway  near  the  cottage,  and 
in  the  line  of  the  footsteps,  some  marks  resembling  those  of  a 
hand  which  had  been  bloody.  Not  the  slightest  suspicion  at 
this  time  attached  to  any  particular  person  ns  the  murderer ; 
nor  was  it  even  suspected  who  might  be  the  father  of  the  child 
of  which  the  girl  was  pregnant.  At  the  funeral,  a  number  of 
persons  of  both  sexes  attended  ;  and  the  stewart-depute  thought 
it  thefittest  opportunity  of  endeavoring,  if  possible,  to  discover 
the  murderer;  conceiving,  rightly,  that  to  avoid  susph  ; 
whoever  he  was,  he  would  not,  on  that  occasion,  be  absent. 
With  this  view  he  called  together,  after  the  interment,  the 
whole  of  the  men  who  were  present,  being  about  sixty  in  mini 
ter.  He  caused  the  shoes  of  each  of  them  to  be  taken  off,  an* 
measured:  and  one  of  the  shoes  was  found  to  resemble  pretty 
nearly  the  impression   of  the  footsteps  hard   by  the   cottage. 


542     SECONDARY    RULES     OF    EVIDENCE. 

even  two  articles  of  circumstantial  evidence, — though 
each  taken  by  itself  weigh  but  as  a  feather, — join  them 
together,  you  will  find  them  pressing  on  a  delinquent 

The  wearer  of  this  shoe  was  the  schoolmaster  of  the  parish  ; 
which  led  immediately  to  a  suspicion,  that  he  must  have  been 
the  father  of  the  child,  and  had  been  guilty  of  the  murder,  to 
save  his  character.  On  a  closer  examination,  however,  of 
the  shoe,  it  was  discovered  that  it  was  pointed  at  the  toe, 
whereas  the  impression  of  the  footstep  was  rounded  at  that 
place.  The  measurement  of  the  rest  went  on  ;  and  after  go- 
ing through  nearly  the  whole  number,  one  at  length  was  dis- 
covered, which  corresponded  exactly  to  the  impression,  in  di- 
mensions, shape  of  the  foot,  form  of  the  sole,  apparently  newly 
mended,  and  the  number  and  position  of  the  knobs.  William 
Richardson,  the  young  man  to  whom  the  shoe  belonged,  on 
being  asked  where  he  was, the  day  the  deceased  was  murdered, 
replied,  seemingly  without  embarrassment,  that  he  had  been 
all  that  day  employed  at  his  master's  work  ;  a  statement  which 
his  master  and  fellow-servants,  who  where  present,  confirmed. 
This  going  so  far  to  remove  suspicion,  a  warrant  of  commit- 
ment was  not  then  granted  ;  but  some  circumstances  occur- 
ring a  few  days  thereafter,  having  a  tendency  to  excite  it  anew, 
the  young  men  was  apprehended  and  lodged  in  jail.  On  his 
examination,  he  acknowledged  he  was  left-handed  ;  and,  some 
scratches  being  observed  on  his  cheek;  he  said  he  had  got 
them  when  pulling  nuts  in  a  wood,  a  few  days  before.  He  still 
adhered  to  what  he  had  said,  of  his  having  been  on  the  day  of 
the  murder  employed  constantly  at  his  master's  work,  at  some 
distance  from  the  place  where  the  deceased  resided;  but,  in  the 
course  of  the  precognition,  it  turned  out,  that  he  had  been  absent 
from  his  work  about  half  an  hour  (the  time  being  distinctly 
ascertained)  in  the  course  of  the  forenoon  of  that  day;  that  he 
called  at  a  smith's  shop  under  pretence  of  wanting  something, 
which  it  did  not  appear  he  had  any  occasion  for:  that  this  smith's 
shop  was  in  the  way  to  the  cottage  of  the  deceased.  A  young 
girl,  who  was  some  hundred  yards  from  the  cottage,  said  that 
about  the  time  the  murder  was  committed  (and  which  corre- 
sponded to  the  time  that  Richardson  was  absent  from  his 
fellow-servants),  she  saw  a  person,  exactly  with  Richardson's 
dress  and  appearance,  running  hastily  toward  the  cottage,  but 
did  not  see  him  return,  though  he  might  have  gone  round  by  a 
small  eminence,  which  would  intercept  him  from  her  view, 
and  which   was  the  very  track  where  the    footsteps   had   been 


PRESUMPTIVE    EVIDENCE.  543 

with  the  weight  of  a  mill-stone.  (V)  Thus,  on  an  in- 
dictment for  uttering  a  bank-note,  knowing  it  to  be 
counterfeit,  proof  that  the  accused  uttered  a  counter- 

(<r)  3  Benth.  Jud.  Ev.  242. 

traced.  His  fellow-servants  now  recollected  that,  on  the  fore- 
noon of  that  day,  they  were  employed,  with  Richardson,  in 
driving  their  master's  carts,  and  when  passing  by  a  wood 
which  they  named,  Richardson  said  that  he  must  run  to  the 
smith's  shop,  and  would  be  back  in  a  short  time.  He  then 
left  his  cart  under  their  charge ;  and  they,  having  waited  for 
him  about  half  an  hour — which  one  of  the  servants  ascer- 
tained, by  having  at  the  time  looked  at  his  watch — they  re- 
marked on  his  return  that  he  had  been  longer  absent  than  he 
said  he  would.  To  which  he  replied,  that  he  had  stopped  in 
the  wood  to  gather  some  nuts.  They  observed  at  this  time 
one  of  his  stockings  wet  and  soiled,  as  if  he  had  stepped  into 
a  puddle  ;  on  which  they  asked  where  he  had  been  ?  He  said 
he  had  stepped  into  a  marsh,  the  name  of  which  he  mentioned  ; 
on  which  his  fellow-servants  remarked,  "  that  he  must  have 
been  either  drunk  or  mad,  if  he  had  stepped  into  that  marsh," 
s  there  was  a  foot-path  which  went  along  the  side  of  it.  It 
.hen  appeared,  by  comparing  the  time  he  was  absent,  with  the 
distance  of  the  cottage  from  the  place  where  he  had  left  his 
fellow-servants,  that  he  might  have  gone  there,  committed  the 
murder,  and  returned  to  them.  A  search  was  then  made  for 
the  stockings  he  had  worn  that  day.  They  were  found  con- 
cealed in  the  thatch  of  the  apartment  where  he  slept ;  appeared 
to  be  much  soiled,  and  to  have  some  drops  of  blood  on  them. 
The  last  he  accounted  for,  by  saying,  first  that  his  nose  had 
been  bleeding  some  days  before  ;  but  it  being  observed  that 
he  had  worn  other  stockings  on  that  day,  he  next  said,  he  had 
assisted  at  bleeding  a  horse,  when  he  wore  those  stockings; 
but  it  was  proved,  that  he  had  not  assisted,  but  had  stood  on 
that  occasion  at  such  a  distance,  that  none  of  the  blood  could 
have  reached  him.  On  examining  the  mud  or  sand  upon  the 
stockings,  it  appeared  to  correspond  precisely  with  that  of  the 
mire  or  puddle  adjoining  to  the  cottage,  and  which  was  of  a 
very  peculiar  kind,  none  other  of  the  same  kind  being  found 
in  that  neighborhood.  The  shoemaker  was  then  discovered 
who  had  mended  his  shoes  a  short  time  before  ;  and  he  spoke 
distinctly  to  the  shoes  of  the  prisoner,  which  were  exhibited 
to  him,  as  having  been  those  he  had  mended.  It  then  came 
out,  that  Richardson  had  been  acquainted   with  the  deceased, 


544     SECONDARY    RULES     OF    EVIDENCE. 

feit  note,  amounts  to  nothing  or  next  to  nothing,— 
any  person  might  innocently  have  a  counterfeit  note 
in  his  possession,  and  offer  it  in  payment.      But  sup- 

who  was  considered  in  the  county  as  of  weak  intellect,  and  had 
on  one  occasion  been  seen  with  her  in  a  wood,  in  circumstances 
that  led  to  a  suspicion,  that  he  had  had  criminal  conversation 
with  her;  and  on  being  gibed  with  having  such  connection 
with  one  in  her  situation,  he  seemed  much  ashamed  and  greatly 
hurt.  It  was  proved  further,  by  the  person  who  sat  next  to 
him  when  the  shoes  were  measuring,  that  he  trembled  much, 
and  seemed  a  good  deal  agitated;  and  that,  in  the  interval  be- 
tween that  time  and  his  being  apprehended,  he  had  been  ad- 
vised to  fly,  but  his  answer  was,  "  Where  can  I  fly  to  ?"  On  the 
other  hand,  evidence  was  brought  to  show  that,  about  the  time 
of  the  murder,  a  boat's  crew  from  Ireland  had  landed  on  that 
part  of  the  coast,  near  to  the  dwelling  of  the  deceased  ;  and  it 
was  said  some  of  that  crew  might  have  committed  the  murder, 
though  their  motives  fordoing  so,  it  was  difficult  to  explain — 
it  not  being  alleged  that  robbery  was  their  purpose,  or  that 
anything  was  missed  from  the  cottages  in  the  neighboihood. 
The  jury,  by  a  great  plurality  of  voices  found  him  guilty. 
Before  his  execution,  he  confessed  he  was  the  murderer  ;  and 
said  it  was  to  hide  his  shame  that  he  committed  the  deed, 
knowing  that  the  girl  was  with  child  to  him.  He  mentioned 
also  to  the  clercrvman  who  attended  him,  where  the  knife 
woidd  be  found,  with  which  he  had  perpetrated  the  murder. 
It  was  found  accordingly  in  the  place  he  described  (under  a 
stone  in  a  wall),  with  marks  of  blood  upon  it. — Mary  Ann 
Burdock  was  tried  before  the  Recorder  of  Bristol,  in  April, 
1835,  for  the  murder  of  Clara  Ann  Smith,  on  the  23rd  Octo- 
ber, 1833.  The  deceased,  who  was  an  elderly  lady,  possessed 
of  some  property,  went  to  live  wiih  the  accused,  who  kept  a 
lodging-house  in  Bristol,  and  was  in  rather  bad  circumstances 
On  the  day  in  question,  the  deceased  being  confined  to  her 
bed,  from  a  cold,  the  accused  was  very  urgent  with  her  to  take 
some  gruel,  which  she  refused  for  some  time,  but  at  last  con- 
sented. Shortly  after  taking  it,  she  was  seized  with  the  symp- 
toms of  poisoning  from  arsenic,  and  died  in  a  few  hours.  No 
medical  assistance  was  procured,  nor  were  her  relatives  made 
acquainted  with  her  death  by  the  accused  ;  who  caused  her  to 
be  privately  buried — telling  the  undertaker  that  an  old  lady 
had  died  in  her  house,  who  had  no  friends,  and  that  she  must 
bury  her  as  the  things  belonging  to  her  were  worth   little  or 


PRESUMPTIVE    EVIDENCE.  545 

pose  further  proof  to  be  adduced  that,  shortly  before 
the  transaction  in  question,  he  had  in  another  place, 
and  to   another  person,  offered  in   payment  another 

nothing.  The  interment  took  place  on  the  31st  October,  1833, 
and  nothing  further  occurred  until  the  month  of  December, 
1834;  when  some  circumstances,  especially  a  change  in  the 
habits  and  mode  of  life  of  the  accused,  having  excited  sus- 
picion, the  body  was  disinterred  on  the  24th  of  that  month, 
and  found  in  a  remarkably  good  state  of  preservation.  An 
anatomical  examination  of  the  body,  and  a  chemical  analysis 
of  a  portion  of  it,  which  have  received  great  praise  in  the 
medical  and  scientific  worlds,  detected  the  presence  of  arsenic, 
no  less  than  four  grains  of  the  sulphuret  having  been  actually 
procured  from  one  portion  of  the  intestines,  while  the  poison 
in  other  forms  was  extracted  from  others;  and  the  suspected 
party  was  accordingly  taken  into  custody  and  brought  to  trial. 
In  addition  to  the  facts  already  stated,  it  appeared  that,  some 
days  before  the  death  of  the  deceased,  the  accused  had  pur- 
chased a  quantity  of  the  sulphuret  of  arsenic,  under  the  ground- 
less pretense  of  killing  rats;  and  had  also  hired  a  girl  to  wait 
on  the  deceased,  whom  she  especially  cautioned  several  times 
to  be  very  careful  not  to  touch  anything  after  the  deceased, 
falsely  representing  her  as  "  a  dirty  old  woman,  who  spat  in 
everything."  It  appeared  also,  by  the  testimony  of  this  girl, 
that  before  administering  the  gruel  to  the  deceased,  the 
accused  brought  it  into  an  adjoining  room,  where  she  put 
some  pinches  of  a  yellow  powder  into  it,  saying  to  the  witness 
that  her  object  in  this  was  to  ease  the  deceased  from  pain,  but 
that  the  witness  was  not  to  tell  the  deceased  that  there  was 
anything  in  the  gruel,  as  if  she  knew  there  was,  she  would 
not  take  it,  and  would  think  they  were  going  to  kill  her.  The 
accused  then  carefully  washed  her  hands  twice.  While  the 
deceased  was  in  the  agonies  of  death,  moaning  and  rolling 
about  in  her  bed,  the  accused,  who  was  in  the  room,  opened  a 
table-drawer,  and  took  out  some  bits  of  candle  and  a  rush- 
light,  saying  to  the   servant,  "Only  think    of  the  old  b h 

having  these  things."  This  expression  she  repeated  after  the 
death  of  the  deceased,  on  finding  some  other  articles  of  small 
value.  She  cautioned  the  servant,  on  leaving  her  house,  not 
to  tell  anything  of  the  deceased,  or  that  she  had  lived  with 
tier,  or  that  she  had  ever  seen  her,  the  accused,  put  anything 
into  the  gruel,  as  people  might  think  it  curious.  On  this  evi- 
dence Mary  Ann  Burdock  was  convicted  and  executed. 
35 


546      SECONDARY    RULES     OE    EVIDENCE. 

counterfeit  note  of  the  same  manufacture,  the  pre- 
sumption of  gu..lty  knowledge  becomes  strong,  (d) 
And  the  same  principle  would  apply  in  any  other  case, 

{d)  R.  v.  Wylie,  or  Whiley,  i  N.  R.  Green,  3  Car.  &  K.  209.  See  also  R, 
92  ;  2  Leach,  C.  L.  983  ;  R.  v.  Ball,  v.  Jarvis,  1  Dearsl.  C.  C  552,  and  R. 
R.  &  R.  132;    1   Campb.   324;    R.  v.      v.  Foster,  Id.  456. 

3.  Jacob.  Jans,  a.  d.  1643,  Huberus,  Praslectiones  Juris 
Civilis,  lib.  22,  tit.  3,  n.  4.  The  following  case  is  inserted  by 
the  author  as  appendix  to  his  edition,  as  illustrative  of  the 
views  of  the  civilians,  at  least  those  of  the  Dutch  school,  on 
the  subject  of  presumptive  proof  in  criminal  proceedings.  It 
has  been  selected  for  the  reason  that,  notwithstanding  the 
antiqiiity  of  the  case  and  the  source  whence  it  is  taken,  no 
evidence  not  receivable  by  the  English  law,  as  it  stands  at  the 
present  day,  appears  to  have  been  adduced : 

Ouidam  Suffridus  Wio-o-eri  dimicaverat  cum  alio,  cui  nomen 
Jacob.  Jans  ;  illo  penes  se  non  habente  cultrum ;  Jacobus  ali- 
quoties  Suffridum  suo  cultro  impetierat :  donee  a  circumstan- 
tibus  ei  culter  extortus  est,  cum  nemo  Suffridum  vidisset  aut 
sciret  esse  percussum.  Is  exinde  in  eodem  loco  per  integram 
fere  horam  sederat  in  scamno  quodam,  nulla  de  vulnere 
querela.  Deinde  egressus  mox  rediit,  pileum  tenens  refertum 
suis  intestinis,  nee  multo  post  extinctus  est,  nulla  cum  alio 
pugna  rixave  habita.  Moribundus  aiebat,  a.  Jacobo  se  vulner- 
aturn,  &  hie,  objectantibus  quibusdam  vulnus  Suffrido  inflic- 
turn,  responderat  aliis  quidem,  non  esse  tarn  grave  vulnus  ; 
alias  tacuerat,  Post  mortem  Suffridi,  Jacobus  accusatus,  ne- 
gabat  factum  ;  probabat  etiam,  Suffridum  aliquot  septimanis 
ante,  cum  apud  secretum  vincula  femoralium  solvere  non  pos- 
set, cultro  ilia  diffindere  conatum  esse,  tarn  imprudenter,  ut 
parum  abesset  quin  cultrum  ventri  impegisset.  Hoc  non  erat 
impossible,  quo  minus  &  tunc  evenire  dotuisset ;  Curia  tamen, 
factum  peremptorium  non  exacte  probatum  adeo  circumstan- 
tiis  undique  pressum,  judicavit  ut  non  dubitaverit,  Jacobum, 
etsi  necdum  annos  XX  natum,  omissa  questione,  capitali  addi- 
cere  supplicio. 

For  further  instances  of  convictions  0/1  purely  presumptive 
evidence,  see  the  cases  of  Richard  Patch,  Surrey  Sp.  Ass.  1806 
i Report  by  Gurney) ;  of  F.  B.  Courvoisier,  Sessions  Papers 
of  the  Cent.  Cr.  Court  of  July,  1840;  of  John  Tawell,  Ayles- 
bury Sp.  Ass.  1845,  Wills,  Circ.  Evid.  198,  3rd  ed. ;  and  those 
of  W.  Howe,  alias  Wood,  Id.  234;  and  Smith  and  others,  Id 


PRES  UMPT1 VE    E  VI PENCE. 


547 


vvnere  it  had  been  proved  that  the  prisoner  had  done 
the  act  charged,  and  the  only  remaining  question  was 
whether,  at  the  time  he  did  it,  he  had  a  guilty  knowl- 
edge of  the  quality  of  his  act.  (e) 

298.  It  is,  however,  of  the  utmost  importance  to 
bear  in  mind,  first,  that  if  all  the  circumstances  proved 
arise  from  one  source,  they  are  not  independent  of 
each  other;  and  that  an  increase  in  the  number  of 
the  circumstances,  will  not  in  such  a  case  increase  the 
probability  of  the  hypothesis ;  (/")  secondly,  that 
where  a  number  of  independent  circumstances  point 
to  the  same  conclusion,  the  probability  of  the  justness 
of  that  conclusion  is,  not  the  sum  of  the  simple  prob- 
abilities of  those  circumstances,  but  the  compound 
result  of  them;  (g)  and  lastly,  that  the  circumstances 


(<r)  R.  v.  Francis,  L.  Rep.,  2  C.  C. 
128,  131  ;  43  L.  J.,  M.  C.  97,  100. 

(/)  Beccaria,  Dei  Delitti  e  delle 
Pene,  §  7;  I  Stark.  Ev.  5G7,  3rd  Ed.  ; 
Id.  851,  4th  Ed. 

(g)  1  Stark.  Ev.  568,  3rd  Ed.  ;  Id. 
853,  4th  Ed.  ;  2  Ev.  Poth.  342.  The 
position,  that  the  degree  of  assurance 
of  the  guilt  of  an  accused  person,  de- 
rived from  a  long  and  connected  chain 
of  presumptive  evidence,  may  equal, 
and  in  many  cases  far  exceed,  that  de- 
rived from  a  limited  portion  (and  in 
most  criminal  cases  it  must  necessari- 
ly be  a  very  limited  portion),  of  direct 
testimony,  is  strongly  illustrated  by  the 
mathematical  formula?  of  the  calculus 
of  probabilities,  to  which  reference  has 
been  made  in  the  Introduction  to  this 
work,  pt.  2,  §  73,  note  (2).  Suppose 
2  persons,  A.  and  B.,  are  charged  with 
2  distinct  acts  equally  criminal — say, 
for  instance,  2  distinct  murders — and, 
in  order  to  simplify  the  question,  let 
us  conceive  the  probability  of  the  prin- 


cipal fact  equal  in  both  cases.  The 
evidence  against  A.  is  altogether  di- 
rect, consisting  of  the  positive  testi- 
mony of  two  witnesses,  of  apparently 
equal  credit,  E.  and  F.  The  probabil- 
ity of  the  truth  of  their  united  testi- 
mony, depends  on  the  values  assign- 
able to  m  and  «  in  the  expressions 

m  P  n* 

note. 


and 


in     that 


mP  +  nP  "    m  +  nP 

Suppose,  further,  that  the  probabil- 
ity of  the  guilt  of  the  accused,  A., 
arising  from  the  evidence  of  each 
of  these  witnesses  taken  singly, 
is  to  the  contrary  probability  in  the 
proportion  of  1000:1.  The  effect 
of  this  is  to  render  //z=iooo,  «=i, 
and/=2.  Substituting  these  values 
in  those  expressions  we  shall  have 
m  p  (iooo)5  1 000000 


mP  +  nP 
mP 


(1000) -  + 1 
1 


1 00000 r 


and 


or,  the  probabil- 
mf  +  nP       1000001  '         '         r 

ity    of  truth    is    to  that  of  error  as  a 

million  to  unity.       Return  now  to  the 


237  ;  The  Commonwealth  v.  Webster,  Report  by  Bemis,  Bos- 
ton   1850,  ante,  v*l.   1,  333,  note. 


548      SECONDARY    RULES     OF    EVIDENCE. 


composing  the  chain  must  all  be  consistent  with  each 
other — a  principle  obvious  in  itself,  and  which  will  be 
further  illustrated  hereafter.  (/:) 

299.  The  term  "  presumption,"  in  its  largest  and 
most  comprehensive  signification,  may  be  defined  to 
be  an  inference,  affirmative  or  disaffirmative,  of  the 
truth  or  falsehood  of  a  doubtful  fact  or  proposition, 
drawn  by  a  process  of  probable  reasoning,  from  some- 
thing proved  or  taken  for  granted.  (Y)1    It  is,  however, 

case   of   B„    all    the   evidence  against       these    numbers  are   only  assumed   for 


whom  is  purely  circumstantial  and  pre- 
sumptive. Instead  of  two  witnesses 
to  the  fact,  there  are  twenty-four 
circumstances  adduced  in  evidence. 
The  probability  of  guilt,  resulting  from 
each  singly,  to  that  of  innocence,  we 
will  take  as  low  as  2:1.  We  then 
have  m=2,  «=i,  and/=24.  Substi- 
tuting these  values  as  before,  we  get 
t»P  16777216 

mF+iif      16777216  +  1' 


and 


16777216+1 ' 
01,  the  probability  of  his  guilt  is  to 
that  of  his  innocence,  in  a  proportion 
exceeding  sixteen  millions  to  unity. 
But  instead  of  a  large  number  of  cir- 
cumstances, each  giving  a  very  slight 
degree  of  probability,  let  us  suppose, 
what  is  far  more  usual  in  practice,  the 
circumstances  to  be  fewer  in  number 
and  stronger  in  themselves.  With 
this  view  we  will  assume  ;«=I0,  H=I, 
and/=S.      Substituting   these  values 


nit 


in 


mP  +  >iP 


and 


nP 


mP  +  nP 


pressions     will     become 


and 


these     ex- 
ioo'ooo'ooo 


IOO/OOO'OOI 


ioo'oooW    »•  A  the  Probabil- 
ity  of  the  guilt  of  the  accused  will  be 


the  purpose  of  illustration  ;  but  the 
above  expressions  clearly  show,  that, 
however,  high  the  credit  of  an  eye- 
witness be  taken,  circumstances  may 
so  accumulate  as  to  give  a  probability 
greater  than  any  assignable. 

(A)  Infra,  sect.  3,  sub-sect.  2. 

(*)  "  Praesumptio  nihil  est  aliud, 
quam  argumentum  verisimile,  com- 
muni  sensu  perceptum  ex  eo,  quod 
plerumque  fit,  aut  fieri  intelligitur." 
Matlhaeus  de  Crimin.  ad  lib.  4S  Dig. 
tit.  15,  c.  6,  n.  1.  The  definition  of 
Huberus,  Pnel.  Jur.  Civ.  lib.  22,  tit.  3, 
n.  14,  is  much  the  same — "  Aniicipa- 
tio  judicii,  de  rebus  incertis,  ex  eo, 
quod  plerumque  fit,  percepta. "  See 
also  Id.  n.  3.  "Est  nihil  aliud  prae- 
sumption,  quam  opinio  ex  probabili 
ratiocinatione  concepta."  Vinnius, 
Jurispr.  Contr.  lib.  4,  cap.  36.  "  Pras- 
sumptio  est  probatio  negotii  dubii  ex 
probabilibus  argumentis."  G.  A.  Stru- 
vius,  Syntag.  Jur.  Civ.  Exercit.  28,  Art. 
XV.  "  Praesumptio  est  probatio  per 
argumenta  probabilia  facta."  Westen- 
bergius,  Principia  Juris,  iib.  22,  tit.  3, 
§  21.  See  also  Id.  §  4.  "  Praesumptio 
est  collectio,  seu  illatio  probabilis,  ex 
argumentis  per  return  circumstantias, 
frequenter  evenientibus,  conjiciens." 
Strauchius,    ad  Univ.  Jus  Privat.  &c. 


to  that  of  his  innocence,  in  the  pro-  Dissert.  25,  Aphor.  33,  Vcet,  Ad  1'and. 
portion  of  a  hundreQ  millions  to  unity.  lib.  22,  tit.  3,  n.  14,  says  presump'irns 
It  will,  of  course,  be  understood   that      are  "Conjecturas  ex  signo  verisimili  ad 


PEES  UMPTIVE    E  VIDENCE. 


549 


rarely  employed  in   jurisprudence   in  this   extended 
sense.      Like  "  presumptive    evidence,"    (Jz)      it    has 

there  obtained  a  restricted  legal  signification  ;   and  is 

probandum  assumptse  ;  vel  opiniones  the  existence  of  the  one  is  established, 
de  re  incerta,  necdumpenitus  probata."  admitted,  or  assumed,  the  inference 
"  On  peut  deliner  la  presomption,  un  as  to  the  existence  of  the  other  imme- 
jugement  que  la  loi  ou  l'lionime  porte  diately  arises,  independently  of  any? 
sur  la  ve'rite  d'une  chose,  par  une  con-  reasoning  on  the  subject.  It  also  fol- 
sequence  tiree  d'une  autre  chose.  Ccs  lows,  from  the  above  definition,  that 
consequences  sont  fonde'es  sur  ce  qui  the  inference  may  be  either  certain 
arrive  communement  et  ordinaire-  or  not  certain,  but  merely  probable, 
ment."  Fothier,  Traite  des  Obliga-  and  therefore  capable  of  being  rebut- 
tions,  Part.  4,  ch,  3,  sect.  2,  §  839.  ted  by  proof  to  the  contrary.  Accord- 
See  also  Bonnier,  Traite  des  Preuves,  ing  to  some  writers,  the  term  presump- 
§635.  "  A  presumption  of  any  fact  is,  tion  is  not  strictly  applicable  where 
properly,  an  inferring  of  that  fact  from  the  inference  is  a  necessary  one,  and 
other  facts  that  are  known  ;  it  is  an  absolutely  conclusive,  as  where  it  is 
aut  of  reasoning  ;  and  much  of  human  founded  on  the  certain  anil  invariable 

knowledge  on  all  subjects  is  derived  course  of  nature 

from  this  source Such  a  distinction  appears  however  to 

In  matters  that    regard    the    conduct  be  an  unnecessary  one ;  and    it    may 


of  men,  the  certainty  of  mathe- 
matical demonstration  can  not  be 
required  or  expected."  Per  Abbott, 
C.  J.,   in  R.  v.  Burdett,  4  B.  &  A.  95, 


well  be  doubted  whether  the  distinc- 
tion be  founded  on  sound  principles. 
The  Roman  lawyers  used  the  term 
in  the    more    extensive    sense.     Their 


161,  162.  "  Where  the  existence  of  pnesumptio  juris  et  de  jure  was  con- 
one  fact  so  necessarily  and  absolutely  elusive."  3  Stark.  Ev.  927,  3rd  Ed. 
induces  the  supposition  of  another,  \Vi:h  respect  to  this  last  observation, 
that  if  the  one  is  true,  the  other  can  it  is  to  be  remarked  that  the  prae- 
not  be  false,  the  term  presumption  sumptio  juris  et  de  jure  of  the  Roman 
can  not  be  legitimately  applied."  2  law,  derived  its  conclusive  effects,  not 
Ev.  Poth.  329.  See  also  Locke  on  the  from  the  supposed  force  of  the  infer- 
Human  Understanding,  B.  4,  ch.  14,  §  ence,  but  because  the  law  superadded 
4.  The  following  very  different  defini-  something  to  its  own  presumption, 
tion  is,  however,  given  in  an  able  That  sort  of  presumption  is  defined 
treatise  on  the  Law  of  Evidence:  "  A  both  by  Alciatus  and  Menochius  "  dis- 
presumpticm  may  be  defined  to  be  an  positio  legis  aliquid  prresumentis,  et 
inference  as  to  the  existence  of  one  super  prsesumpto,  tanquam  sibi  corn- 
fact,  from  the  existence  of  some  other  perto,  statuentis."  Alciatus  de  Prses. 
fact,  founded  upon  a  previous  ex-  Pars  2,  n.  3  ;  Menochius,  de  Prres.  lib. 
perience  of  their  connection.  To  con-  I,  quasst.  8,  n.  1.  "  Prsesumptio  juns, 
stitute  such  a  presumption,  a  previous  et  de  jure,"  says  Vinnius,  jurisp.  Con- 
experience  of  the  connection  between  tract,  lib.  4,  cap.  36,  "  dicitur,  cum  lex 
the  known  and  inferred  facts  is  essen-  ipsa  prsesumit  et  simul  disponit  ;  si 
tial,  of  such  a  nature  that,  as  soon  as  modo  prsesumptio,  ac  non  potius  juris 


(£)  See  Introd.  pt.  1,  sec.  27,  and  supra,  sec.  293 


550     SECONDARY    RULES     OF    EVIDENCE. 

used  to  designate  an  inference,  affirmative  or  disaffirm- 
ative  of  the  existence  of  some  fact,  drawn  by  a  judicial 
tribunal,  by  a  process  of  probable  reasoning  from  some 
matter  of  fact,  either  judicially  noticed,  or  admitted, 
or  established  by  legal  evidence  to  the  satisfaction  of 
the  tribunal.  (/) 

300.  But  the  English  term  "  presumption,"  as  well 
as  the  Latin  "  prsesumptio,"  has  been  used  by  jurists 
and  lawyers  in  several  different  senses.  An  attentive 
examination  of  the  subject  will  detect  at  least  seven. 
1.  The  original  or  primary  sense  stated  in  the  preced- 
ing article.  2.  The  strict  legal  sense  there  explained. 
3.  A  generic  term  including  every  sort  of  rebuttable 
presumption  ;  i.  e.,  rebuttable  presumptions  of  law, 
strong  presumptions  of  fact,  mixed  presumptions,  or 
masses  of  evidence,  direct  or  presumptive,  which  shift 
the  burden  of  proof  to  the  opposite  party.  It  is  only 
in  this  sense  that  the  well-known   maxim,  "  Stabitur 

qucedam  constitutio  dicenda  est."    And  is  presumed  from  parturition  ;  or  that 

the  same  may  be  said  of  the  conclusive  innocence  is  presumed  from   proof  of 

presumptions  of  our  own  law,  in  which  an  alibi?     Nor  does  the  quality  above 

"  the  rule  of  law  merely  attaches  itself  attributed    to    presumptions    as    their 

to    the    circumstances,    when    proved  ;  essential  ingredient,  namely,  that  the 

it  is    not   deduced   from    them.     It   is  inference  is  made  without  any  exercise 

not  a  rule  of  inference  from  testimony  ;  of  the    reasoning  faculties,  rest    on  a 

but  a  rule  of  protection,  as  expedient,  much    better   foundation.     The  infer- 

and  for  the  general  good."     I  Greenl.  ring  one  fact  from  another  must   ever 

Ev.  §   32,   7th   Ed.     The  use  of  pre-  be  an  act  of  reasoning,  however  rapid 

sumption  as  a  generic  term,  applica-  the   process,   or  however   obvious   the 

ble  to  certain  as  well  as  to  contingent  inference  ;   and  although  the  law  has  in 

inferences,   is   indeed   justified  by  the  some  cases  added  to  particular  facts,  an 

example   of  some  other  distinguished  artificial  weight  beyond  their  natural 

writers  (Mcnoch.de  Praes.  lib.  I,  qusest.  tendency  to  produce  belief,   still  many 

3,  &c.  qurest.  7,  nn.  2  &  3;  Titius,  Jus  legal    presumptions    are    only  natural 

Privat.   lib.   2,   c.    II,  ^    14,    &c.) ;  but  presumptions   of  fact  recognized   and 

their  authority  is  overborne  by  those  enfo-^ed  by  law. 
collected  above,  the  number  of  which  (/)  S  e   Domat,  Lois   Civiles,  P.  1 

might    easily   be    increased.     Try  the  liv.  3,  tit.  6,  Preamb.  &  sect.  4  ;  2  Ev 

question    by   this    test.     Would    it  he  Poth.  332. 
correct  to  say  that  sexual   intercourse 


PRESUMPTIVE    EVIDENCE.  551 

praesumptoni  donee  probetur  in  contrarium,"1  holds 
good.  And  here  it  will  be  necessary  to  advert  to  the 
language  of  L.  C.  B.  Gilbert,  (in)  who  says,  that  pre- 
sumption is  defined  by  the  civilians,  "  Conjectura  ex 
certo  signo  proveniens,  quae  alio  (non)  adducto  pro 
veritate  hobetur."  This  is  far  from  correct.  The 
above  definition  seems  to  be  taken  from  a  somewhat 
similar  one  given  by  Alciatus  and  Menochius,  of  pre- 
sumptions of  law  ;  («)  but  it  is  wholy  inapplicable 
either  to  praesumptiones  juris  et  de  jure, — whose  very 
nature  is  to  exclude  all  proof  against  what  they  as- 
sume as  true  ;  or  to  those  presumptions  of  fact  which 
are  too  slight  to  shift  the  burden  of  proof.  4.  A 
generic  term  applicable  to  certain  as  well  as  to  contin- 
gent inferences.  (0)  5.  On  the  other  hand,  the  word 
presumption  has  even  been  restricted  to  the  sense  of 
irrebuttable  presumption.  (/)  6.  The  popular  sense 
of  presumptuousness,  arrogance,  blind  adventurous 
confidence,  or  unwarrantable  assumption,  (q)  7.  The 
Latin  "  praesumptio  "  had,  at  one  time  at  least,  another 

(m)  Gilb.  Evid.  156,  157,  4th  Ed.  s.  17,  stat.  2  ;  19  Geo.  3,  c.  56,  s,  3  ;  11 

(«)  Alciat.    de    Praes.   Pars  3,  n.   1;  Geo.  4  &  1  Will.  4,  c.  23,  s.   5  ;  6  &   7 

Menoch.    de    Pnes.    lib.    1,  quaest.  8,  Will.  4,  c.  76,  s.  8;  8  &  9  Vict.  c.  87,  s. 

n.  1.  10.     The  Latin  "  praesumptio  "  is  fre- 

(c)  Menoch.  de  Praes.  lib.  1,  quaest.  3;  quently  used  in  this  sense  by  Bracton 

&    quaest.   7,    nn.  2    &   3;  Titius.  Jus  (see  fol.  1  b.  §§  7  and  8;  6  a,  §  5;  22r 

Privat.  lib.  2,  c.  ir,  §  14,  &c;  3  Stark.  b,  §  2):  as  also  by  the  civilians  and 
Ev.  927,  3rd  Ed.                                          .  canonists  ;    Mascard,  de  Prob.   quaest. 

(/)  Grounds  and  Rudiments  of  Law,  10,    nn.    1,   5  &   6 ;    Alciat.    de    Pnes. 

p.  186,  2nd  Ed.;  Branch,  Max.  p.  107,  Pars.  2,  N.  1;  &c.     See  also  the  form 

5th  Ed.;  and  Halkerston's  Max.  p.  79.  of  the  commission  of  the  peace.  Dalt. 

(q)  Doct.  &  Stud.  c.  26  ;  Litt.  R.  327  ;  Countr.  Just.  16,  18;  Archb.  Justice  of 

Hargr.  Co.  Litt.  155  b,  note  (5);  4  &  5  the  Peace. 
Will.  &  M.  c.  23,  s.  10  ;  1  Geo.  i,  c.  13, 

1  Dugas  v.  Esteletto,  5  La.  An.  560;  Davenport  v.  Mason,  15 
Mass.  85  ;    Baalam  v.  State,    17  Ala.  798;    Byrd  v.  Fleming,   4 
Bibb.  (Ky.)  143.     Courts  of  equity  can  go  no  more  on  what  is 
called  presumptive  evidence,  than    courts  of  law.     Warner  v 
Daniels,  1  Wood  &  M.  90. 


552      SECONDARY    RULES     OF    EVIDENCE. 

signification.  In  Leges  Hen.  i  c.  10,  §  i,  we  find  the 
expression,  "  Prcesumpcio  terre  vel  pecunie  regis;'' 
where  "prcesumptio  "  is  used  in  the  sense  of  "invasio" 
"  intrusio,"  or  "  usurpatio."  (r)  Some  others  will  be 
found  in  Mascard.de  Prob.  qusest.  10  ;  and  Mailer's 
note  (a)  to  Struvius,  Syntag.  Jur.  Civ.  Exercit.  28,  § 
XV.  The  confusion  necessarily  consequent  on  so 
many  meanings  for  the  same  word,  joined  to  the  great 
importance  and  natural  difficulty  of  the  subject  of 
judicial  presumptions,  fully  justify  Alciatus  (s)  in 
speaking  of  it,  as  "  Materia  valde  utilis  et  quotidi- 
ana  in  practica,  sed  confusa,  inextricabilis  fere." 

301.  Before  proceeding  further,  it  seems  advis- 
able to  advert  to  certain  expressions  used  by  the  civ- 
ilians and  canonists  to  indicate  different  kinds  of 
proof,  and  the  degrees  of  conviction  resulting  from 
them,  which,  although  in  a  great  degree  obsolete,  are 
not  undeserving  of  notice.  These  are,  "Argumen- 
tum,"  "  Indicium,"  "  Signum,"  "  Conjectura,"  "  Suspi- 
cio,"  and  "  Adminiculum."  The  term  "  Argumentum  " 
included  every  species  of  inference  from  indirect  evi- 
dence, whether  conclusive  or  presumptive.  (J)  "  In- 
dicium " — "  Indice,"  in  the  French  law — answers  to 
that  form  of  circumstantial  evidence  in  ours,  where  the 
inference  is  only  presumptive ;  and  was  used  to  desig- 
nate the  fact  giving  rise  to  the  inference,  rather  than 
the  inference  itself.  Under  this  head  were  ranked  the 
recent  possession  of  stolen  goods,  vicinity  to  the  scene 
of  crime,  sudden  change  of  life  or  circumstances, 
&c.  (u)     By  "  signum"  was  meant  indirect  evidence 

(r)  See  the  Ancient  Laws  and  Insti-  4S  Dig.  tit.  15,  cap.  6,  n.  v    and  Vin- 

tutes  of  England,  A.n.,  1840,  vol.  I,  p.  nius,  Jurisp.  Contr.  lib.  4  cap.  25  &  36. 
519,  note  {b),  and  Glossary.  («)  Mascaid.  de  Prob.  lib.  I,  quajst. 

(j)  Alciat.  de  Prces.  p.  1,  n.  1.  15;  Menochius  de  Prses.  lib.  I,  quacst. 

(t)  See  Matthasus  de  Crimin.  ad  lib.  7;  Encyclopedic  iMcthodique,  tit.  Ju 


PRESUMPTIVE    EVIDENCE.  553 

coming  under  the  cognizance  of  the  senses;  such  as" 
stains  of  blood  on  the  person  of  a  suspected  murderer 
indications  of  terror  on  being  charged  with  an  of- 
fense, &c.  (v)  "  Conjectura  "  and  "  Suspicio  "  were 
not  so  much  modes  of  proof,  as  expressions  denoting 
the  strength  of  the  persuasion  generated  in  the  mind 
by  evidence.  The  former  is  well  defined,  "  Ration- 
abile  vestigium  latentis  veritatis,  unde  nascitur  opinio 
sapientis ;"  (ui)  or  a  slight  degree  of  credence,  caused 
by  evidence  too  weak  or  too  remote  to  produce  belief 
or  even  suspicion.  It  is  only  in  the  character  of  "  in- 
dicative" evidence  that  this  has  anyplace  in  English 
law.  (x)  "  Suspicio  "  is  a  stronger  term — "  Passio 
animi  aliquid  firmiter  non  eligentis."  (y)  E.g.  A  B 
is  found  murdered  ;  and  C  D,  a  man  of  bad  character, 
is  known  to  have  had  an  interest  in  his  death  ;  this 
might  give  rise  to  a  conjecture  that  he  was  the  mur- 
derer ;  and  if  in  addition  to  this,  he  had,  a  short  time 
before  the  murder,  been  seen  near  the  spot  where  the 
body  was  found,  the  feeling  in  favor  of  his  guilt  might 
amount  to  suspicion.  "  Adminiculum,"  as  its  etymon 
implies,  meant  any  sort  of  evidence,  which  is  useless 
if  standing  alone,  but  useful  to  corroborate  other 
evidence,  (z)  These  distinctions  may  appear  sub- 
tilties  to  us,  but  for  many  reasons  they  were  not  with- 
out their  use  in  the  systems  where  they  are  found. 
The  decision  of  all  questions  of  law  and  fact  was, 
there  entrusted  to  a  single  judge,  one  of  the  few 
limitations  to  whose  power  was,  that  the  accused  could 


risprudence,    Art.    Indices;    Bomier,  n.  14. 

Traite  des  Preuves,  §§  14  &  636.  (x)  See  bk.  1,  pt.  1,  §  93. 

(v)  Quintil.   Inst.    Orat.  lib    3,0.9;  (f)  Menochius  de  Proes.  lib,  i.quaest. 

Menoch.    de   Praes.    lib,    I,  quoest.    7,  8,  n.  41. 
nn.  31-37.  (2)  Menoch.  de  Praes.  lib.  1,  qusest 

(«/)   Mascard.    de    Prob.  qusest.   14.,  7,  nn.  57,  58,  59. 


554      SECONDARY    RULES    OF    EVIDENCE. 

not  be  put  to  the  torture,  in  the  absence  of  a  certain 
amount  of  evidence  against  him.  (a) 

302.   In    dealing  with  this  important  subject,  we 
propose  to  treat  it  in  the  following  order  : 

1.  Presumptive  evidence,  presumptions  generally, 

and  fictions  of  law. 

2.  Presumptions  of  law  and  fact,  and  of  mixed  law 

and  fact,  usually  met  in  practice. 

3.  Presumptions    and    presumptive    evidence    in 

criminal  law. 


SECTION  I. 

PRESUMPTIVE     EVIDENCE,    PRESUMPTIONS     GENERALLY 
AND    FICTIONS    OF    LAW. 

303.  It  is  clear  that  presumptive  evidence,  and 
the  presumptions  to  which  it  gives  rise,  are  not 
indebted  for  their  probative  force  to  positive  law. 
When  inferring  the  existence  of  a  fact  from  others, 
courts  of  justice  (assuming  the  inference  properly 
drawn)  do  nothing  more  than  apply,  under  the  sanc- 
tion of  law,  a  process  of  reasoning  which  the  mind  of 
any  intelligent  being  would,  under  similar  circum- 
stances, have  applied  for  itself ;  and  the  force  of  which 
rests  altogether  on  experience  and  observation  of  the 
course  of  nature,  the  constitution  of  the  human  mind, 
the  springs  of  human  action,  and  the  usages  and 
habits  of  society.  (<£)     All  such   inferences  are  called 

(a)  Decret.   Gratian.   lib.   5,   tit.  41,  found  with  webbed  feet,  belong  to  the 

cap.  6  ;  Matth.  de  Prob.  cap.  2,  n.  So,  same  philosophy,  differing  only  in  the 

(i)  "  The  presumption  of  a  malicious  instance,  and   not  in  ihe  principle,  of 

intent  to  kill,  from  the  deliberate  use  its  application."     1  Greenl.   Ev.  §  14, 

of  a  deadly  weapon,  and  the  presump-  7th  Ed. 
tion  of  aquatic    habits  in    an    animal 


PR  US  UMPTIVE    E  VIDENCE.  5  5  5 

by  our  lawyers  "  Presumptions  of  fact,"  or  "  Natural 
presumptions,"  and  by  the  civilians,  "  Praesumptiones 
homin's ; "  (Y)  in  order  to  distinguish  them  from 
others  of  a  technical  kind,  more  or  less  of  which  are 
to  be  found  in  every  system  of  jurisprudence,  and 
which  are  known  by  the  name  of  "  Praesumptiones 
juris,"  or  "  Presumptions  of  law."  (d)  To  these  two 
classes  may  be  added  a  third,  which,  as  partaking  in 
some  degree  of  the  nature  of  each  of  the  former,  may 
be  called  "  Praesumptiones  mixtae,"  "  Mixed  presump- 
tions," or  "  Presumptions  of  mixed  law  and  fact." 
And,  as  presumptions  of  fact  are  both  unlimited  in 
number,  and  from  their  very  nature  are  not  so  stricly 
the  object  of  legal  science  as  presumptions  of  law,  {ej 
we  purpose,  in  accordance  with  the  example  of  other 
writers  on  evidence,  to  deal  with  the  latter  first, 
together  with  the  kindred  subject  of  fictions  of  law. 
We  shall  then  treat  of  the  former,  together  with 
mixed  presumptions  ;  and  the  present  section  will 
conclude  with  a  notice  of  conflicting  presumptions. 


SUB-SECTION    I. 


PRESUMPTIONS    OF    LAW,    AND    FICTIONS    OF    LAW. 

PARAGRAPH 

Presumptions  of  law    ..........  304 

Grounds  of  ..........  305 

Irrebnttable  presumptions  of  law  or  Praesumptiones  juris  et  de  jure    .  306 

Number  of  ..........  307 

Use  of 308 


(c)   Mascardus    de    Prob.    Conclus.  of  nature. 

1226,  however,  restricts  the  expression  (d )  See  Introd.  pt.  2,  §§  42  &  43. 

"naturae    prsesumptio  "   to    presump-  {e)  Phil.  &  Am.  Ev.  457. 
tions  derived  from  the  ordinary  course 


556     SECONDARY    RULES     OF    EVIDENCE. 


Fictions  of  law        ........ 

Use  of 

Rules  respecting  ...... 

i.  Must  not  prejudice  innocent  parties  . 

2.  Must  have  a  possible  subject-matter 
Kinds  of   ....... 

i.    Affirmative    ...... 

2.  Negative 

3.  Of  relation 

To  persons  . 

To  things         ..... 

To  place       ..... 

To  time    ....... 

Rebuttable  presumptions  of  law,  or  Prsesumptiones  juris  tantum 


PARAGRAPH 

308 
309 
3"> 
3IO 

3" 

312 

313 

313 

3i 

313 

313 

SO 

313 

314 


304.  Presumptions,  or  as  they  are  also  called,  "  In- 
tendments" of  law,  and  by  the  civilians,  "  Prsesump- 
tiones seu  positiones  juris,"  are  inferences  or  positions 
established  by  law,  common  or  statue;  and  have  been 
shown  in  the  Introduction  to  this  work,  (_/")  for  rea- 
sons which  it  is  unnecessary  here  to  repeat,  to  be 
indispensable  to  every  well-regulated  system  of  juris- 
prudence. They  differ  from  presumptions  of  fact  and 
mixed  presumptions  in  two  most  important  respects. 
1  st,  that  in  the  latter  a  discretion,  more  or  less  exten- 
sive, as  to  drawing  the  inference  is  vested  in  the  tribu- 
nal ;  while  in  those  now  under  consideration,  the  law 
peremptorily  requires  a  certain  inference  to  be 
made  whenever  the  facts'  appear  which  it  assumes 
as  the  basis  of  that  inference.  If,  therefore,  a  judge 
directed  a  jury  contrary  to  a  presumption  of 
law,  a  new  trial  was,  at  common  law,  grantable  ex 
debito  justitice  ;  {g)  and  if  a  jury,  or  even  a  succession 
of  juries  disregard  such  a  presumption,  a  new  trial  will 


(/)  Introd.  pt.  2,  §§  42  &  43. 

(g)  Phil.  &  Am.  Ev.  464  ;  Haire  v. 
Wilson,  9  13.  &  C.  643.  Under  the 
Supreme  Court  of  Judicature  Act, 
1873  (36  &  37  Vict.  c.  66,  Sched.  Rule 
d8).  a  new  trial  would  not   be  granted 


in  such  a  case,  unless,  in  the  opinion 
of  the  court,  the  alleged  misdirection 
had  occasioned  some  substantial 
wrong  or  miscarriage  in  the  trial  of 
the  action. 


PRESUMPTIVE    EVIDENCE.  557 

still  be  granted,  toties  quoties,  as  matter  of  right.  (Ji) 
But  when  any  other  species  of  presumption  is  over- 
looked or  disregarded,  the  granting  of  a  new  trial  has 
always  been  held  to  be  a  matter  for  the  discretion  of 
the  court,  which  will  be  more  or  less  liberal  in  this  re- 
spect, according  to  the  nature  and  strength  of  the 
presumption.  2nd  (and  here  is,  that  the  difference 
between  the  several  kinds  of  presumptions  is  so  strong- 
ly marked),  as  presumptions  of  law  are,  in  reality,  rules 
of  law,  and  part  of  the  law  itself,  the  court  may  draw 
the  inference  whenever  the  requisite  facts  are  before  it  , 
(z )  while  other  presumptions,  however  obvious,  being 
inferences  of  fact,  could  not,  at  common  law,  be  made 
without  the  intervention  of  a  jury.  * 

305.  The  grounds  oi  these  prassumptiones  juris 
are  various.  Some  of  them  are  natural  presumptions 
which  the  law  simply  recognizes  and  enforces.  Thus 
the  legal  maxim,  that  every  one  must  be  presumed  to 
intend  the  natural  consequence  of  his  own  act  ;  (/£) 
and,  therefore,  that  he  who  sets  fire  to  a  building  in- 
tended injury  to  its  owner ;  and  that  he  who  lays  poison 
for,  or  discharges  loaded  arms  at  another,  intended 
death  or  bodily  harm  to  that  person  ;  merely  establishes 
as  law,  a  principle  to  which  the  reason  of  man  at  once 
assents.  But  in  most  of  the  presumptions  which  we 
are  now  considering,  the  inference  is  only  partially 
approved  by  reason, — the  law,  from  motives  of  policy, 
attaching  to  the  facts  which  give  rise  to  it,  an  artificial 
effect  beyond  their  natural  tendency  to  produce  belief. 
Thus,  although,  a  receipt  for  money  under  hand  and 
seal,  naturally  gives  rise  to  a  presumption  of  payment, 

{h)  Phil.  &  Am.  Ev.  459  ;  1  Ph.  Ev.  I  Chitty,  Plead.  221,  6th  Ed. 

467,   10th    Ed.  ;    Tindal  v.    Brown,   1  (k)  3  M.  &  Selw.  15  ;  9  B.  &  C.  645  ; 

T.  R.  167-171.  R.   v.   Sheppard,  R.  &  R.  169  ;  R.  y. 

(j)  Steph.    Plead.  391-392,  5th    Ed  ;  Farrin^ton,  Id.  207. 


558      SECONDARY    RULES    OF    EVIDENCE. 

still  it  does  not  necessarily  prove  it ;  and  the  conclu- 
sive effect  of  such  a  receipt  is  a  creature  of  the  law.  (/) 
So,  the  maxim  by  which  a  party  who  kills  another  is 
presumed  to  have  done  it  maliciously,  seems  to  rest 
partly  on  natural  equity  and  partly  on  policy.1  To 
these  may  be  added  a  third  class,  in  which  the  princi- 
ple of  legal  expediency  is  carried  so  far,  as  to  establish 
inferences  not  perceptible  to  reason  at  all,  and  perhaps 
even  repugnant  to  it.  Thus,  when  the  law  punishes 
offenses,  even  mala  prohibita,  on  the  assumption  that 
all  persons  in  the  kingdom,whcther  natives  or  foreigners, 
are  acquainted  with  the  common  and  general  statute 
law.it  manifestly  assumes  that  which  has  no  real  exist- 
ence whatever,  though  the  arbitrary  inference  may  be 
dictated  by  the  soundest  policy. 

306.  A  very  important  distinction  exists  among 
presumptions  of  law, — namely,  that  some  are  absolute 
and  conclusive,  called  by  the  common  lawyers  Irrebut- 
table presumptions,  and  by  the  civilians  Praesumptiones 
juris  et  de  jure  ;  while  others  are  conditional,  incon- 
clusive, or  rebuttable,  and  are  called  by  the  civilians 
Praesumptiones  juris  tantum,  or  simply  Praesumptiones 
juris.  The  former  kind  has  been  most  accurately  de- 
fined by  the  civilians,  "  Dispositio  legis  aliquid  prae- 
sumentis,  et  super  praesumpto,  tanquam  sibi  comperto, 
statuentis."  They  add  "  Praesumptio  juris  dicitur,  quia 
lege  introducta  est ;  et  de  jure,  quia  sui  super  tali  prae- 

(/)  Gilb.  Ev.  158.  4th  Ed. 

1  Commonwealth  v.  Hawkins,  3  Gray  (Mass.)  463;  State  v. 
Patterson,  45  Vt.  30S. 

See  meaning  of  the  rule  that  the  law  presumes  an  unlawful 
act,  unacompanied  by  any  justifying  circumstances,  to  have 
Deen  committed  with  an  intent  io  have  produced  the  circum- 
stances which  have  ensued,  was  (Roscoe  Crim.  Ev.  20),  con- 
sidered in  the  Vermont  case. 


PRESUMPTIVE    EVIDENCE.  559 

sumptione  lex  inducit  firmum  jus,  et  habet  earn  pro" 
veritate."  (in)  In  a  word,  they  are  inferences  which 
the  law  makes  so  peremtorily,  that  it  will  not  allow 
them  to  be  overturned  by  any  contrary  proof,  however 
strong. '  Thus  where  a  cause  has  once  been  regularly 
adjudicated  upon  by  a  competent  tribunal,  from  which 
there  is  no  appeal,  the  whole  matter  assumes  the  form 
of  res  judicata  ;  and  evidence  will  not  be  admitted;  in 
subsequent  proceedings  between  the  same  parties,  to 
show  that  decision  to  be  erroneous.  (;z)2  An  infant 
under  the  age  of  seven  years  is  not  only  presumed  in- 
capable of  committing  felony,  but  the  presumption 
can  not  be  rebutted  by  the  clearest  evidence  of  a  mis- 
chievous discretion,  (o)  So,  a  bond  or  other  specialty 
is  presumed  to  have  been  executed  for  good  consider- 
ation, and  no  proof  can  be  admitted  to  the  contrary, 
(p)  unless  the  instrument  is  impeached  for  fraud.  (^) 
A  receipt  under  hand  and  seal  is  conclusive  evidence 
of  the  payment  of  money  ;  (r)  and  in  the  time  of  the 
old   feudal  tenures  it  was  an  irrebuttable  presumption 

(m)  Alciatus  de  Praes.  Pars.  2,  n.  3  ;  (/)  Plowd.  30S-9  ;  2  Stark.  Ev.  930, 

Menochius  de  Praes.   lib.   1,  quaest.  3.  3rd  Ed. ;  Id.  747,  4th  Ed. 

n.  17  ;  Poth.  Obi.  §  807.  (</)  Stark,  in  loc.  cit.    See  bk.  2,  pt. 

(;z)  See  infra,  ch.  9.  3,  §  220. 

(0)  1  Hale,   P.  C.  27-8  ;  4   Blackst.  (;-)  Gilb.  Ev.  158,  4th  Ed. 
Comm.  23. 


1  Greenleaf  on  Evidence,  §  15. 

*  See  Miller  v.  McManus,  57  111.  126.  Judgment  in  a  suit 
upon  joint  and  several  note  in  favor  of  one  surety,  will  not 
bar  suit  against  another,  unless  the  defense  in  the  first  was  an 
extinguishment  of  the  cause  of  action,  or  unless  the  defenses 
are  identical.  Hill  v.  Morse,  61  Me.  541.  Though  a  formej 
suit  may  not  operate  strictly  as  res  adjudicata,  yet  it  may  be 
referred  to  as  an  element  by  which  a  conclusion  in  accordance 
with  the  result  may  be  assisted.  Hume  v.  Beale's  Executrix. 
17  Wall.  ;  and  see  Bemis  v.  Jennings,  46  Vt.  45;  Daven- 
port v.  Hubbard,  Id.  336;  Watson  v.  Jones,  11  Am.  Law  Reg 
N.  S.  430  ;  Bradley  v.  Johnson,  49  Ga.  412. 


S6o    SECONDARY    RULES     OF    EVIDENCE. 

of  law,  that  a  person  under  the  age  of  twenty-one  was 
incapable  of  performing  knight  service,  (s) 

307.  These  conclusive  presumptions  have  varied 
considerably  in  the  course  of  our  legal  history.  Cer- 
tain presumptions,  which  in  earlier  times  were  deemed 
absolute  and  irrebuttable,  have,  by  the  opinion  of  later 
judges,  acting  on  more  enlarged  experience,  eithei 
ranged  among  praesumptiones  juris  tantum,  or  consi- 
dered as  presumptions  of  fact  to  be  made  at  the 
discretion  of  a  jury.  (J)  On  the  whole,  modern  courts 
of  justice  are  slow  to  recognize  presumptions  as  irre- 
buttable, and  are  disposed  rather  to  restrict  than  to 
extend  their  number.  To  preclude  a  party,  by  an 
arbitrary  rule,  from  adducing  evidence  which,  if 
received,  would  compel  a  decision  in  his  favor,  is  an 
act  which  can  only  be  justified  by  the  clearest  expe- 
diency and  soundest  policy ;  and  some  presumptions 
of  this  class  ought  never  to  have  found  their  way  into 
it. 

308.  Praesumptiones  juris  et  de  jure  are  not,  how- 
ever, without  their  use.  On  the  contrary,  when 
restrained  within  due  limits,  they  exercise  a  very 
salutary  effect  in  the  administration  of  justice,  by 
throwing  obstacles  in  the  way  of  vexatious  litigation 
and  repressing  inquiries  where  sound  and  unsuspected 
evidence  is  not  likely  to  be  obtained.  Among  the 
most  useful  in  these  respects,  may  be  ranked  the  prin- 
ciple which  upholds  the  authority  of  res  judicata,  the 
intendments  made  by  the  courts  to  support  the  ver- 
dict of  juries,'  and,  as  expounded  in  modern  times,  the 
doctrine  of  estoppel. 

309.  "  Fictions  of  law"  are  closely  allied   to  irre- 

(/)  Litt.  sect.  103  ;  Co.  Litt.  7Sb.  (/)  Ph.  &  Am.  Ev.  460  ;    1  Phil.  Er. 

469,  10th  Ed. 
1  Ante,  note  2,  p.  433. 


PRESUMPTIVE    EVIDENCE.  561 

buttable  presumptions  of  law.  "  Fictio  est  legis,  ad- 
versus  veritatem,  in  re  possibili,  ex  justa  causa,  dispo- 
sitio " :  («)  in  other  words,  where  the  law,  for  the 
advancement  of  justice,  assumes  as  fact,  and  will  not 
allow  to  be  disproved,  something  which'  is  false,  but 
not  impossible.  The  difference  between  fictions  of 
law  and  prsesumptiones  juris  et  de  jure  consists  in  this, 
that  the  latter  are  arbitrary  inferences  which  may  01 
may  not  be  true  ;  while  in  the  case  of  fictions,  the  false- 
hood of  the  fact  assumed  is  understood  and  avowed,  (x) 
"  Super  falso  et  certo  fingitur,  super  incerto  et  vero 
prsesumitur."  (y)  Thus,  the  prsesumptio  juris  et  de 
jure,  that  infants  under  the  age  of  seven  years  are  doli 
incapaces  for  felonious  purposes,  (2)  is  probably  true 
in  general,  though  false  in  particular  instances  ;  but 
when,  in  order  to  give  jurisdiction  to  the  courts  at 
Westminster,  the  law  used  to  feign  that  a  contract, 
which  was  really  entered  into  at  sea,  was  made  in  some 
part  of  England,  (a)  the  assumption  was  avowedly  false, 
and  a  fiction  in  the  completest  sense  of  the  word. 

310.  Fictions  of  law,  as  is  justly  observed  by  Mr. 
Justice  Blackstone,  (6)  though  they  may  startle  at 
first,  will  be  found  on  consideration  to  be  highly  bene- 
ficial and  useful.  Like  artificial  presumptions,  how- 
ever, they  have  also  their  abuse  ;  for  we  sometimes 
find  them  introduced  into  the  jurisprudence  of  a 
country  without  adequate  cause,  or  retained  in  it  alter 

(u)  Gothofred.   Not.  3,  ad  lib.     22  tit.    3,  n.    19;  Alciatus  de  Pr«s.  Fats 

Dig.  tit.    3  ;  Westenbergius,  Principia  I,  n.  4. 

Juris,  ad   lib.     22   Dig.    tit.  3,   §   2S  ;  (y)  Gothof.   Not.  (3)  ad  lib.  22  Dig. 

Huberus,    Positiones  Juris,   ad  lib.  22  tit.  3. 

Dig.    tit.    3,    N.    25  ;    Menochius   de  (3)  1  Hale,  P.  C.  27-28  ;  4  Blackst. 

Proes.    lib.    1,    qurest.    8   ;    3    Blackst.  Comm.  23. 

Comm.  43,   note  {/>).     See  also  2  Rol.  (a)  3   Blackst.  Comm.   107  ;  4  Inst 

502,  and  Palm.  354.  134. 

(x)  Huberus,  Pnel.  Jur.  Civ.  lib.  22,  (l>)  3  Blackst.  Comm.  43. 
tit.  3,  n.  21  ;  Voet.  ad  Pand.  lib.   22, 


562     SECONDARY    RULES     OF    EVIDENCE. 

their  utility  has  ceased.  They  are  invented,  say  the 
civilians,  "ad  conciliandam  sequitatem  cum  ration e  et 
subtilitate  juris  ;"  {c)  and  it  is  a  well-known  maxim  of 
the  common  law,  "  in  lictione  juris  semper  subsistit 
sequitas ;  "  (d)  in  furtherance  of  which  principle  the 
two  following  rules  have  been  laid  down. 

311.  First,  fictions  are  only  to  be  made  for  neces- 
sity, and  to  avoid  mischief,  (e)  and,  consequently,  they 
must  never  be  allowed  to  work  prejudice  or  injury  to 
an  innocent  party :  (_/")  "  Fictio  juris  non  operatur 
damnum  vel  injuriam."  (g)  Thus,  when  a  man  seized 
in  fee  of  lands  marries,  and  makes  a  feoffment  to  an- 
other, who  grants  a  rent-charge  out  of  it  to  the  feoffor 
and  his  wife,  and  to  the  heirs  of  the  feoffor ;  the  feoff- 
or dies,  and  his  wife  recovers  the  moiety  of  the  land 
for  her  dower  by  custom,  she  may  distrain  but  for  half 
of  the  rent  charge  ;  for  although,  by  fiction  of  law,  hei 
claim  of  dower  is  above  the  rent,  yet,  if  that  fiction 
were  carried  so  far  as  to  allow  her  to  distrain  for  the 
whole  rent,  it  would  work  a  wrong  to  a  third  person, 
which  the  law  will  not  allow,  (/i)  So,  although  the 
vouchee  in  a  common  recovery  was,  by  fiction  of  law, 
considered  tenant  of  the  land,  so  far  as  to  enable  him 
to  levy  a  fine  to  the  demandant,  or  to  accept  a  fine  or 
release  from  him  ;  still,  as  the  vouchee  had  really  noth- 
ing in  the  land,  a  fine  by  him  to  a  stranger,  or  a  fine 
or  release  to  him  from  a  stranger,  was  void.  (J) 

312.  Secondly,  it  is  said  to  be  a  rule,  that  the 
matter  assumed  as  true  must  be  something  physically 


(c)  Voet.  ad.  Pand.  lib.  22,  tit.  3,  N.         (/)  Id.    29;    n   Co.    51a;    13   Co. 
19.  21a. 

(d)  3  Blackst.  Comm.  43;  Co.  Litt.  (g)  Palm.  354.     See  also  3  Co.  36a; 
150a;  10  Co.  40a;  11  Co.  51a.                     2  Rol.  502;  9  Exch.  45. 

(t)  3  Co.  30a,   Butler  and   Backer's  (h)  Co.  Litt.  150a. 

(*)  Id.  265b;  3  Co.  29b. 


PRESUMPTIVE    EVIDENCE.  563 

possible.  (/£)  "  Lex  non  intendit  aliquid  impossibile. 
(/)  "  Lex  non  cogit  ad  impossibilia."  (in)  "  Nulla 
impossibilia  sunt  prsesumenda."  (11)  Thus,  says  Hu- 
berus,  where  a  man  devises  his  property,  on  condition 
that  the  devisee  shall  do  a  certain  act  within  a  limited 
time  after  the  death  of  the  devisor ;  until  that  time  has 
expired  with  the  condition  unperformed,  the  deceased 
can  not  be  said  to  have  died  intestate  ;  because  the 
condition,  when  performed,  has  a  retrospective  effect 
to  the  time  of  the  death.  But  if  the  limited  time  be 
allowed  to  elapse  with  the  condition  unperformed,  no 
subsequent  performance  of  it  can  have  relation  back  to 
the  day  of  the  death  ;  for  this  would  involve  the  ab- 
surdity, of  a  man  who  had  already  died  intestate,  being 
deemed  to  have  died  testate  at  a  time  subsequent  to 
his  decease.  (0) 

313.  Fictions  of  law  are  of  three  kinds  ;  affirmative 
or  positive  fictions,  negative  fictions,  and  fictions  of 
relation.  (/)     In  the  case  of  affirmative  fictions,  some- 

{k)  Huberus,  Pnel.  Jur.  Civ.  lib.  22,  ly  born.     In  the  latter  of  these  cases, 

tit.  3,  n.  22  ;    Alciatus,  de   Prses.  Pars  however,  the  fiction  involves  no  impos- 

1,   n.  5  ;    Devot.   Inst.   Canon,  lib.  3,  sibility,  its  only  operation  being  with 

titl.  9,  §  28,  not.  2,  5th  Ed.      "  Ches-  relation  to  time  ;  and  with  respect  to 

cun    fiction    doit  estre  ex  re  possibili ;  the  former,  it   is  clear  from  the  pre- 

ceo   ne  serra  d'impossible,   car  le  ley  amble  of  the  constitution  in  question, 

imitate   nature;"    per   Doddridge,  J.,  that  the   right  to    adopt  given  to  the 

in    Sheffeild  v.    Ratcliffe,    2   Rol.  501.  persons   in    the    condition  there  men- 

The   existence  of  this  rule  has  been  tioned,  was  conferred  on  them  as  an 

denied,  and  especially  by  Titius  (Jus  indulgence,  without  any  reference  to  a 

Privatum,  &c.  lib.  1,  cap.  9,  §§   1  &  supposed  power  of  procreation. 

13),  who  says  of  fictions  in  general,  (/)  12  Co.  89. 

"  totus    iste  fictionum  apparatus,  non  (m)  Co.  Litt.  92a,  231b;  9  Co.  73a; 

tantum    non    necessarius,   sed    inutilis  Hob.  96. 

ineptusque  ;"  and  he  adduces,  as  in-  («)  Co.  Litt.  78b. 

stances  of  feigned  impossibilities,  the  (0)  Huberus,  Prsel.  Jur.  Civ.  lib.  22, 

26th  Constitution  of  the  Emperor  Leo,  tit.  3,  n.  22. 

entitled,    "ut    eunuchi    adoptare    pos-  (J>)  "  Tres   constitui   solent    species, 

sint  ;"  and  also  the  fact  that  a  child  1.  AfHrmativa,  Positiva,  seu  Inductiva, 

in    ventre   sa  mere    is    susceptible    of  qua    aliquid    ponitur    seu    inducitur, 

many  rights,  just  if  it  had  been  actual-  quod  non  est.     2.   Negativa  seu  Priva 


564      SECONDARY    RULES    OF    EVIDENCE. 

thing-  is  assumed  to  exist  which  in  reality  does  not, 
such  as  the  fiction  of  lease,  entry  and  ouster,  in  actions 
of  ejectment,  previous  to  the  15  &  16  Vict.  c.  76  ;  the 
old  fiction,  that  the  plaintiff  in  all  suits  on  the  law  side 
of  the  Exchequer  was  accountant  to  the  Crown  ;  (y) 
and  the  ac  etiam  clause  in  writs,  by  means  of  which 
the  Court  of  Queen's  Bench  preserved  its  jurisdiction 
over  matters  of  debt,  after  the  passing  of  13  Car.  2,  c. 
2,  st.  2,  (r)  &c.  In  negative  fictions,  on  the  contrary, 
that  which  really  exists  is  treated  as  if  it  did  not.  Thusi 
a  disseisee,  after  his  re-entry,  may  maintain  trespass  for 
injury  done  to  the  freehold  during  his  disseisin,  on  the 
principle  that,  so  far  as  the  disseisor  and  his  servants 
are  concerned,  the  freehold  must  be  taken  never  to 
have  been  divested  out  of  the  disseisee.  (V)  Fictions 
of  relation  are  of  four  kinds  :  (7) — First,  where  the  act 
of  one  person  is  taken  to  be  the  act  of  another ;  as 
where  the  act  or  possession  of  a  servant  is  deemed  the 
act  or  possession  of  bis  master.  So,  where  a  felonious 
act  is  done  by  one  person  in  the  presence  of  others 
who  are  aiding  or  abetting  him,  the  act  of  that  one 
is,  in  contemplation  of  law,  the  act  of  all.  («)  "  Qui 
per  alium  facit,  per  seipsum  facere  videtur."  (x)  Sec- 
ond, where  an  act  done  by  or  to  one  thing  is  taken,  by 
relation,  as  done  by  or  to  another  ;  as  where  the  pos- 
sesssion  of  land  is  transferred  by  livery  of  seisin,  or  a 
mortgage  of  land  is  created    by  delivery  of  the  title- 


tiva,  qua  id,  quod  revera  est,  fingitur,  II  Exch.  19. 

ac  si  non  esset.     3.  Translative,  qua  (t)  "  Translatio  fit.      1.  A  person^ 

id,    quod    est    in    uno,    transfertur    in  in    personam.     2.  De    re  ad  rem.     3. 

aliud."     Westenbergius,  Principia  Ju-  De  loco  ad  locum.     4.  De  tempore  ad 

ris,  lib.  22,  tit.  3,  g  29.  tempus."        Westenbergius,   Principia 

{q)  3  Blackst.  Comm.  46.  Juris,  lib.  22,  tit.  3,  §  30. 

(r)  Id.  287,  288.  («)  1  Hale,  P.  C.  437. 

(s)  11   Co.  51a,  Lifcrd's   case.      See  (x)  Co.    Litt.    258a.     See   Dig.    lib, 

also  Barnett  v.  The  Earl  of  Guildford,  43,  tit.  16,  1.  r,  §  12. 


PRESUMPTIVE    EVIDENCE.  565 

deeds.  Third,  fictions  as  to  place ;  as,  in  the  case  al- 
ready put,  of  a  contract  made  at  sea,  or  abroad,  being 
treated  as  if  made  in  England,  and  the  like.  ( y)  There 
is  a  curious  instance  of  this  kind  of  fiction  in  the  civil 
law,  by  which  Roman  citizens  who  were  made  prisoners 
by  an  enemy,  were  on  their  return  home  supposed 
never  to  have  been  prisoners  at  all,  and  were  entitled 
to  civil  rights  as  if  they  had  not  been  out  of  their  own 
country.  {£)  Fourth  (and  lastly),  fictions  as  to  time. 
Thus,  where  a  feoffment  was  made  with  livery  of  seisin, 
a  subsequent  attornment  by  the  tenant  was  held  to 
relate  back  to  the  time  of  the  livery,  (a)  It  is  on  this 
principle,  that  the  title  of  an  executor  or  administrator 
to  the  goods  of  the  testator  or  intestate,  relates  back 
to  the  time  of  his  death,  and  does  not  take  effect  mere- 
ly from  the  probate,  or  grant  of  the  letters  of  adminis- 
tration (b) — an  extremely  useful  fiction,  to  prevent  the 
property  of  the  deceased  being  made  away  with.  And 
it  is  a  fixed  principle,  that  ratification  has  relation  back 
to  the  time  of  the  act  done, — "  Omnis  ratihabitio  retro- 
trahitur  et  mandato  sequiparatur,"  (c) — a  maxim  which 
has  been  well  explained  in  some  modern  cases,  (d~)  and 
was  also  known  in  the  Roman  law.  (e)  This  kind  of 
fiction  is  also  largely  to  be  found  in  the  procedure  of 
the  courts,  where  it    is  every  day's  practice  to  deliver 

(y)  3  Blackst.  Comm.  107.  3  B.  Moore,  619  ;  6  Scott,  N.  R.  896; 

(2)  Dig.  lib.  49,  tit.  15,  1.  12,  §  6.  2  Exch.  185  and  188  ;  4  Id.  790,  79S  ; 

(a)  3  Co.  29a.  7  II.  &  N.  693. 

{b)  See  the  cases  on  this  subject  col-  (d)  Wilson  v.  Tumman,  6  Scott,  N. 

lected  in  Tharpe  v.  Stallwood,5  Man.  R.  894,    6    Man.  &  Gr.    236  ;    Bird  v. 

&  Gr.   760;    also  Foster  v.  Bates,  12  Brown,  4  Exch.  786;    Buron  v.  L'en- 

M.  &  W.  226  ;  Morgan  v.  Thomas,  8  man,  2  Exch.  167  ;  Secretary  of  State 

Exch.  302  ;    and    Barnett  v.  The  Earl  in  Council  of  India  v.  Kamachee  Boye 

of  Guildford,  11  Exch.  19.  Sahaba,  13  Mo.  P.  C.  C.  22. 

(c)  Co.     Litt.      180b,     207a,      245a,  (e)  Dig.   lib.  46.   tit.   3,    1.   12,    §4; 

258a;    9  Co.  106a  ;    4    Inst.     317;     1  lib.  43,  tit.  16,  1.  1,  §  14  ;  lib.  3,  tit.  £ 

Wins.  Saund   264b,  note  (e),  6th  Ed.  ;  1.  6,  §  9  ;  Cod.  lib.  4.  tit.  2S,  1.  7. 


566      SECONDARY    RULES     OF    EVIDENCE. 

pleadings,  sign   judgments,  and    do  many   other  acts 
nunc  pro  tunc.  (/")  ' 

314.  The  other  kind  of  presumptions  of  law 
which  we  have  called  Rebuttable  presumptions,  or 
Prassumptiones  juris  tantum,  has  been  thus  correctly 
defined  by  one  of  the  civilians  :  "  Pr^sumptio  juris 
dictur,  qua?  ex  legibus  introducta  est,  ac  pro  veritate 
iiabetur,  donee  probatione  aut  praesumptione  contraria 
fortiore  enervata  fuerit."  (g)  Every  word  of  this 
sentence  is  worthy  of  attention.  First,  like  the  former 
class,  these  presumptions  are  intendments  made  by 
law;  but  unlike  them,  they  only  hold  good  until  dis- 
proved. Thus,  although  the  law  presumes  all  bills  of 
exchange  and  promissory  notes,  to  have  been  given 
and  endorsed  for  good  consideration,  it  is  competent 
for  certain  parties  affected  by  these  presumptions  to 
falsify  them  by  evidence.  (/;)  2  So,  the  legitimacy  of  a 
child  born  during  wedlock,  may  be  rebutted  by  proof 
of  the  absence  of  the  opportunity  for  sexual  intercourse 

(/)  See    further,  on    the   subject  of  defines  a  presumption  of  law,  "  Animi 

fictions  generally,    Finch,     Law,    66 ;  legislators    ad    verisimile    applicatio, 

and  on  fictions  by  relation,  Butler  and  onus  probandi  transferens."      Baldus, 

Baker's  case,  3  Co.  25a,  and    2  Roll.  in  Rubr.  Cod.  de  Probat.  n.  8. 

Abr.  tit.    Relation,  and   Trespass    per  {k)  3    Stark.  Ev.  930,  3rd   Ed.  ;  Id. 

Relation.  747,   4th  Ed.  ;  Byles  on  Bills,  ch.   10, 

{g)  Vcet  ad   Pand.   lib.   22,  tit.  3,  n.  8th  Ed. 
15.     Another   civilian,   more  ancient, 

1  Says  Woodworth,  J.,  in  Low  v.  Little  (17  Johns.  [N.  Y.] 
346) :  "  ....  It  must  be  remembered  that,  with  regard  to 
legal  fictions,  it  is  a  general  maxim,  that  in  fictione  juris  sub- 
sistit  aequelas,  wherever  it  may  contribute  to  the  advancement 
of  justice  the  fiction  is  maintained,  but  is  never  allowed  to 
work  an  injury  or  prejudice  to  any  party.  For  the  attain- 
ment of  substantive  justice,  and  to  prevent  the  failure  of  right, 
the  court  frequently  apply  this  maxim." 

9  There  can  be  no  presumption  in  opposition  to  the  facts 
proved.  Richie  v.  Putnam,  13  Wend.  524.  Positive  proof  to 
the  contrary  will  always  overcome  a  presumption.  Id.  Whit- 
lock  v.  McKechnie,  1  Bosvv.  425. 


PRESUMPTIVE    EVIDENCE.  567 

between  its  supposed  parents,  (z  )  '  So,  while  the  law 
presumes  every  infant  between  the  ages  of  seven  and 
fourteen,  to  be  incapable  of  committing  felony,  as 
being  doli  incapax,  still  a  'mischievous  discretion  may 
be  shown  ;  for,  malitia  supplet  aetatem.  (J&)  And 
there  are  many  instances  of  children  under  the  age  of 
fourteen  being  punished  capitally.  To  this  class  also 
belong  the  well-known  presumptions  in  favor  of  inno- 
cence,3 and  sanity,3  and   against  fraud  ;   the  presump- 

(?)  See  on  this  subject,  infra,   sect.  (k)  I    Hale,   P.    C.    26  ;  4  Blackst. 

2,  sub-sect.  3.  Coram.  23  ;  12  Ass.  PI.  30. 

1  Herring  v.  Goodson,  43  Miss.  392. 

'  Or  in  civil  cases  the  analogous  presumptions  that  the  law 
has  been  obeyed,  e.  g.,  in  an  action  for  libel  on  the  manager 
of  an  opera,  he  need  not  aver  that  he  was  licensed,  since  he 
will  be  presumed  not  to  have  violated  the  law.  Fry  v.  Ben- 
nett, 28  N.  Y.  324;  3  Bosw.  200.  So  a  license  to  sell  liquors 
will  be  presumed  from  the  selling;  Smith  v.  Joyce,  12  Barb. 
21.  So  officers  will  be  presumed,  in  all  cases,  to  have  done 
their  duty.  Wood  v.  Terry,  4  Lans.  80;  Cooper  v.  Bean,  5 
Id.  318  ;  Lucas  v.  Baptist  Church,  4  How.  Pr.  353  ;  Hartwell 
v.  Root,  19  Johns.  345  ;  Wood  v.  Moorehouse,  45  N.  Y.  368, 
1  Lans.  405. 

3  The  presumption  is  that  every  man  is  sane.  United  States 
v.  Lawrence,  4  Cranch  C.  Ct.  514;  S.  P.  United  States  v. 
McGlue,  1  Curt.  1  ;  O'Brien  v.  People,  48  Barb.  (N.  Y.) 
274.  That  is  to  say,  all  persons  of  mature  age  are  pre- 
sumed to  be  sane  until  after  inquest  found,  when  the  presump- 
tion is  changed,  and  proof  is  required  to  show  sanity.  Lilly  v. 
Waggoner,  27  111.  395.  The  burden  of  proving  insanity  is 
upon  the  person  alleging  it.  State  v.  Brown,  12  Minn.  538. 
But  it  seems,  when  the  attesting  witnesses  to  a  deed  are  dead 
there  is  no  presumption  that,  if  living,  they  would  testify  that 
the  grantor  was  of  sane  mind  at  the  time  of  the  delivery  of 
the  deed.  Flanders  v.  Davis,  19  N.  H.  139.  So,  where  death 
is  the  result  either  of  accident  or  of  a  suicidal  act,  the  presump- 
tion of  law  is  against  the  latter.  Mallory  v.  Travellers'  Ins. 
Co.,  47  N.  Y.  52.     And  see  post,  note  to  sec.  433. 

An  inquisition  of  lunacy  if  properly  taken  is  but  presump- 
tive proof  against  persons  not  parties  or  privies.  Rippy  v. 
Gant,   4  Ired.    (N.    C.)    Eq.   443.       General    derangement   of 


568      SECONDARY    RULES     OF    EVIDENCE. 

tion  that  legal  acts  have  been  performed  with  the 
solemnities  required  bylaw;1  that  every  person  dis- 
charges the  duties  or  obligations  which  the  law  casts 
upon  him,&c.  (/)  2  The  concluding  words  of  the  defi- 
nition of  this  species  of  presumptions  show  that  they 
may  be  rebutted  by  presumptive,  as  well  as  by  direct 
evidence,  and  that  the  weaker  presumption  will  give 
place  to  the  stronger,  (m)  3 

(/)  Infra,  sect.  2,  sub-sect.  3  and  4.  (m)  Infra,  sub-sect.  3. 

mind  being  established,  the  party  alleging  sanity  must  prove 
it;  and  so  in  cases  of  monomania,  or  insanity  upon  particular 
subjects,  the  same  rules  are  applicable  in  respect  to  matters 
involving  the  sanity  of  the  party  upon  the  particular  subject. 
But  if  the  sanity  be  temporary  it  forms  an  exception  to  these 
general  rules,  so  far  as  to  vary  or  relax  their  application. 
Thornton  v.  Appleton,  29  Me.  298.  Where  the  question  is  as 
to  the  sanity  of  a  testator  at  the  time  of  making  his  will,  the 
burden  is  on  the  party  denying  the  sanity.  Phelps  v. 
Hartwell,  i  Mass.  71  ;  Hubbard  v.  Hubbard,  6  Id.  397;  Sin- 
gleton's Will,  8  Dana  (Ky.)  315;  Burton  v.  Scott,  3  Rand. 
(Va.)  399.  To  the  contrary,  Crowinshieid  v  Crowinshield,  2 
Gray  (Mass.)  524. 

1  So  an  officer  will  be  presumed  to  have  taken  an  acknowl- 
edgment of  a  deed,  within  the  limits  of  his  jurisdiction.  Peo- 
ple v.  Snyder,  41  N.  Y.  397  ;  51  Barb.  589. 

3  Wood  v.  Terry,  4  Lans.  80;  Cooper  v.  Bean,  5  Id.  31S  , 
Wood  v.  Moorehouse,  45  N.  Y.  368  ;  Lucas  v.  Baptist  Church. 
4  How.  Pr.  353. 

3  Burrill  on  Circumstantial  Evidence  60-61  And  see/w* 
sub-section  2. 


PRESUMPTIVE    EVIDENCE.  569 


SUB-SECTION    II. 

PRESUMPTIONS    OF    FACT     AND     MIXED     PRESUMPTIONS. 

PARAGRAPH 

Presumptions  of  fact .         .         .  315 

C*.  Grounds  and  sources  of  .         .......  316 

Presumptions  relating  to  things 316 

persons 316 

the  acts   and   thoughts  of    intelligent 

agents  ....  317 

2°.  Probative  force  of  presumptive  evidence  .  317 

Division  of  presumptions  of  fact  into  violent,  probable,  and 

light 317 

Doubtful  utility  of 318 

Division  of  presumptions  of  fact  into  slight  and  strong    .         .  319 

1.  Slight 319 

Do    not    constitute    proof,    or   shift   the   burden    of 

proof ,         .  320 

Use  and  effect  of 320 

2.  Strong           .........  321 

Shift  the  burden  of  proof      .         .         .         .         .         .  321 

Prima  facie  evidence 321 

Effect  of 322 

Distinguishable  from  prsesumptiones  juris  tantum    .  323 

Mixed  presumptions 324 

Grounds  of 324 

Artificial  presumptions  formerly  carried  too  far     .         .         .         .         .  325 

Legitimate  use  of  artificial  presumptions 325 

Directions    to    juries    respecting    presumptions    of    fact    and    mixed 

presumptions       ...........  326 

New  trials  for  disregard  by  juries,  of  presumption  of  fact  or  mixed 

presumptions 327 

315.  We  now  return  to  a  more  particular  exami- 
nation of  Prsesumptiones  hominis,  or  Presumptions  of 
fact  ;  in  treating  of  which  it  is  proposed  to  consider, 
1.  The  grounds  or  sources  whence  they  are  derived  ; 
2  Their  probative  force.  We  shall  then  briefly  ex- 
plair  the  nature  of  Praesumptiones  mixtse,  or  Presump- 
tions of  mixed  law  and  fact ;  and,  lastly,  show  the 
extent   to  which   the    discretion   of  juries  in  drawing 


57o      SECONDARY    RULES     OF    EVIDENCE. 

presumptive  inferences,  is  controlled  or  reviewed  W 
courts  of  law. 

316.  i°.  The  grounds  or  sources  of  presumptions 
of  fact  are  obviously  innumerable — they  are  co-exten- 
sive with  the  facts,  both  physical  and  psychological 
which  may,  under  any  circumstances  whatever,  become 
evidentiary  in  courts  of  justice  ;  (11) — but,  in  a  gen- 
eral view,  such  presumptions  may  be  said  to  relate  to 
things,  persons,  and  the  acts  and  thoughts  of  intelligent 
agents.  (0)  With  respect  to  the  first  of  these,  it  is  an 
established  principle  that  conformity  with  the  ordinary 
course  of  nature  ought  always  to  be  presumed.  Thus, 
the  order  and  changes  of  the  seasons  ;  the  rising,  set- 
ting, and  course  of  the  heavenly  bodiec,  and  the  known 
properties  of  matter,  give  rise  to  very  important  pre- 
sumptions relative  to  physical  facts  or  things.'  The 
same  rule  extends  to  persons.  Thus,  the  absence  of 
those  natural  qualities,  powers,  and  faculties,  which 
are  incident  to  the  human  race  in  general,  will  never 
be  presumed  in  any  individual ;  such  as  the  impossi- 
bility of  living  long  without  food,  the  power  of  procre- 
ation within  the  usual  ages,  the  possession  of  the 
reasoning  faculties,  the  common  and  ordinary  under- 
standing of  man,  &c.  (p)  To  this  head  are  reducible 
presumptions  which  juries  are  sometimes  called  on 
to  make,  relative  to  the  duration  of  human  life, 
the  time  of  gestation,  &c.  Under  the  third  class 
namely,  the  acts  and   thoughts   of  intelligent  agents 

(n)  "Desumitur     [praesnmptio]     ex  amore,  ex  societate,  &c."      Matthseus 

personis,   ex    causis,  ex  loco,   ex   tern-  de  Probationibus,  c.  2,  n.  I. 
pore,  ex  qualitate,  ex  silentio,  ex  fa-  (o)  Huberus,  Prasl.  Jur.  Civ.  lib.  33, 

miliaritate,  ex  fuga,  ex  negligentia,  ex  tit.  3,  n.  17. 
vicinia,   ex  obscuritate,  ex  eventu,  ex  (J>)  Id. 

dignila'.e,  ex  astate,  ex  quantitate,  ex 

•  See  an  analagous  class  of  presumptions  treated  under  the 
head  of  judicial  notice,  ante,  vol.  1,  p.  408,  note  1. 


PRESUMPTIVE    EVIDENCE.  571 

among  others,  all  psychological  facts  ;  and  here,  most 
important  inferences  are  drawn  from  the  ordinary  con- 
duct of  mankind,  and  the  natural  feelings  or  impulses 
of  human  nature.  Thus,  no  man  will  ever  be  pre- 
sumed to  throw  away  his  property,  as,  for  instance,  by 
paying  money  not  due ;  (cj)  and  so  it  is  a  maxim,  that 
every  one  must  be  taken  to  love  his  own  offspring 
more  than  that  of  another  person,  ir)  Many  pre- 
sumptions of  this  kind  are  founded  on  the  customs 
and  habits  of  society  ;  as,  for  instance,  that  a  man  to 
whom  several  sums  of  money  are  owing  by  another 
will  first  call  in  the  debt  of  longest  standing,  (s) 
Nor  is  this  confined  to  the  human  race  ;  for  similar 
presumptions  may  be  derived  from  the  instincts  of 
animals.  (7) 

317.  20.  The  vast  field  over  which  presumptive 
reasoning  extends^  must  render  ineffectual  any  attempt 
to  reduce  into  definite  classes  according  to  their  degree 
of  probative  force,  the  presumptions  to  which  it  gives 
rise.  Some  classification,  however,  has  generally  been 
deemed  convenient ;  (11)  and  there  is  one  which,  on 
the  strength  of  certain  high  authorities,  seems  to  have 
become  embodied  into  our  law  of  evidence.  "  Many 
times,"  said  Sir  Edward  Coke,  (V)  "juries  together 
with  other  matter,  are  much  induced  by  presumptions  ; 
whereof  there  be  three  sorts,  viz.,  violent,  probable,  and 
light  or  temerary.  Violenta  pnesumptio  is  many  times 
plena  probatio  ;  praesumptio  probabilis  moveth  little  ; 
but  praesumptio  levis  seu  temeraria  moveth  not  at  all  " 

(g)  Voet.  ad  Pand.  lib.  22,  tit.  3,  n.  (t)  Huber.   Prael.  Jur.  Civ.   lib.    22 

15  ;  Dig.  lib,  22,  tit.  3,  1.  25.  tit.  3,  n.  16  ;  Goodeve,  Evid.   52. 

(r)  Co.  Litt.  373a.      See  also  2  Inst.  (k)  A  large  number,  taken  from  the 

564.  works  of  the  earlier  civilians,  are  col- 

(s)  Gilb.   Ev.   156-158,  4th  Ed.  ;  1  lected  by   Menochius,  de  Praes.  lib.  I 

Ev.   Poth.  §  812  ;  Cod.  lib.  10,  tit.  22,  qunest.  2. 
1.  3.  (v)  Co.  Litt.  6b. 


572      SECONDARY    RULES    OF    EVIDENCE. 

'  Praesumptio  violenta  valet  in  lege."  (x)  As  an  in- 
stance of  violenta  praesumptio,  amounting  to  plena  pro- 
batio,  Sir  Edward  Coke,  (jy) — and  in  this  he  is  followed 
by  several  other  eminent  authors,  (z) — puts  the  case  of 
a  man  who,  being  in  a  house,  is  run  though  the  body 
with  a  sword,  and  instantly  dies  of  that  wound  ;  where- 
upon another  man  is  seen  to  come  out  of  that  house, 
with  a  bloody  sword,  no  other  man  being  at  that  time 
in  the  house.  "  This,"  observes  Chief  Baron  Gilbert, 
(a)  "  is  a  violent  presumption  that  he  is  the  murderer; 
for  the  blood,  the  weapon,  and  the  hasty  flight,  are  all 
the  necessary  concomitants  to  such  horrid  facts ;  and 
the  next  proof  to  the  sight  of  the  fact  itself,  is  the 
proof  of  those  circumstances  that  do  necessarily  attend 
such  fact."  Notwithstanding  the  weight  of  authority 
in  its  favor,  this  illustration  of  violent  presumption 
has  been  made  the  subject  of  much  and  deserved  ob- 
servation. If  the  authors  just  quoted  mean  to  say,  as 
their  words  imply,  that  there  is  no  possible  mode  of  re- 
conciling the  above  facts  with  the  innocence  of  the  man 
who  is  seen  coming  out  of  the  house,  the  proposition 
is  monstrous  !  Any  of  the  following  hypotheses  will 
reconcile  them,  and  probably  others  might  be  suggested. 
First,  that  the  deceased,  with  the  intention  of  commit- 
ting suicide,  plunged  the  sword  into  his  own  body ; 
and  that  the  accused,  not  being  in  time  to  prevent 
him,  drew  out  the  sword,  and  so  ran  out,  through  con- 
fusion of  mind,  for  surgical  assistance.  (Ji)  Second, 
that  the  deceased  and  the  accused  both  wore  swords ; 
that  the  deceased,  in  a  fit  of  passion,  attacked  the  ac- 
cused .  and  that  the  accused,  being  close    to    the  wall, 

(x)  Jenk.  Cent.  2,  Cas.  3.  See  also  note  (/),  p.  430. 

1  v)  Co.  Litt.  6b.  («)  Gilb.  Evid.  in  loc.  cit. 

,'2)2    Hawk.    P    C.    c.   40,  s.    42,   1  (/;)  3  Benth.  Jud.  Ev.  236;  Burnett'* 

t-'tark.    Ev.   562,  3rd  E.I    ;    Id.  S43,  4th  Crim.  Law.  Scotl.  508. 
Ed.;  Gilb.    Evid.    157    4th    Ed.,  &c. 


PRESUMPTIVE    EVIDENCE.  573 

had  no  retreat,  and  had  just  time  enough  to  draw  his 
sword,  in  the  hope  of  keeping  off  the  deceased,  who, 
not  seeing  the  sword  in  time,  ran  upon  it  and  so  was 
killed.  (V)  Third,  that  the  deceased  may  in  fact  have 
been  murdered,  and  that  the  real  murderer  may  have 
escaped,  leaving  a  sword  sticking  in  or  lying  near  the 
body,  and  the  accused,  coming  in,  may  have  seized  the 
sword  and  run  out  to  give  the  alarm,  (d)  Fourth, 
that  the  sword  may  have  been  originally  used  in  an  at- 
tack by  the  accused  on  the  deceased,  and  wrenched 
from,  and  afterwards  turned  against  the  deceased  by 
the  accused,  under  danger  of  attack  on  his  life  by  pis- 
tol or  otherwise,  (e)  Perhaps,  however,  Sir  Edward 
Coke  and  Chief  Baron  Gilbert  only  meant,  that  the 
above  facts  would  constitute  a  sufficient  prima  facie 
case,  to  call  on  the  accused  for  his  defense,  and,  in  the 
absence  of  explanation  by  him,  would  warrant  the  jury 
in  declaring  him  guilty.  (_/*) 

318.  The  utility  of  the  classification  of  presumptions 
of  fact,  into  violent,  probable,  and  light,  is  questionable  ; 


(c)  3  Benth.  Jud.  Ev.  236,  237.  and  subsequent  periods,  as  conclusive 
(</)  Goodeve,  Evid.  32.  proof  of  murder  (Baitolus,  Comment. 
(e)  Id.  in  2ndam   partem  Dig.  Novi,  de  Fur- 
(/)  Their  language  seems  to  have  tis,  121a,  Ed.  Lugd.  1547);  and   they 
been  so  understood  by  Mounteney,  B.,  were  deemed,  in  our  own   law,    suffi- 
n  the  case  of  Annesley   v.    The    Earl  cient   to   support   a   counterplea  to   a 
of  Anglesea  (17    Ho.    St.    Tr.    1430).  wager  of  battle,  and  thus  oust  the  ap- 
Mr.   Starkie,  however,  says,   that   the  pellee  of  his  right  to  invoke  the  judg- 
circumstances  wholly   and  necessarily  ment   of  Heaven.     Staundf.  P.  C.  lib. 
exclude    any  but  one  hypothesis.     (1  3,    c.    15,    Counterplees    al    Battaile  ; 
Stark.    Ev.   562,  3rd  Ed  ;  Id.  844,  4th  Bracton,    lib.    3,    fol.    137.     See    also 
Ed.)      The   illustration   given  by   Sir  Britton,  fol.  14.      Their  inconclusive- 
Edward   Coke   of  a  violent  presump-  ness,  however,  did  not  escape   the   no- 
tion is  very  ancient,  and  seems  to  have  tice  of  some  of  the  more   enlightened 
been  a  favorite  both  among  the   early  civilians,    both   before   and   since    the 
civilians  and  the  common-law  lawyers.  time  of  Coke.       See    Boerius,   Quaes 
The  facts   stated   in  the  text  are  ex-  tiones,   16S  ;  Voet.   ad    Pand.  lib.   23 
pressly    adduced  by    Bartolus,   in    the  tit.  3,  n.  14,  &c. 
14th  century,  and  other  writers  of  that 


574      SECONDARY    RULES     OF    EVIDENCE. 

(g)  but  if  it  be  thought  desirable  to  retain  it,  the  fol- 
lowing good  illustration  is  added  from  a  well-known 
work  on  criminal  law  :  "  Upon  an  indictment  for  steal- 
ing in  a  dwelling-house,  if  the  defendant  were  appre- 
hended a  few  yards  from  the  outer  door,  with  the  stolen 
goods  in  his  possession,  it  would  be  a  violent  presump- 
tion of  his  having  stolen  them  ;  but  if  they  were  found 
in  his  lodgings  some  time  after  the  larceny,  and  he  re- 
fused to  account  for  his  possession  of  them,  this,  to- 
gether with  proof  that  they  were  actually  stolen,  would 
amount,  not  to  a  violent,  but  to  a  probable  presumption 
merely ;  but,  if  the  property  were  not  found  recently 
after  the  loss,  as,  for  instance,  not  until  sixteen  months 
after,  it  would  be  but  a  light  or  rash  presumption,  and  " 
(if  it  stood  alone)  "  entitled  to  no  weight."  (Ji)  : 

(g)  2  Gr.  Russ.  727.      It  is  retained      §  30,  Paris,  1852. 
in  Devotus,  Instit.  Canon,  lib.  3,  tit.  g,         (k)  Archb.  Crim.  Plead.  208,  15th  Ed. 

1  A  question  of  great  importance  to  the  American  practic 
ing  lawyer,  was  discussed  in  Doe  d.  Beanland  v.  Hurst  (11 
Price,  475,  489-492),  as  to  whether  a  deed  respecting  real 
estate  will  be  presumed  in  a  county  where  deeds  were  regis- 
tered. The  English  Act,  see  Id.  p.  492,  for  registering  deeds 
and  conveyances,  in  the  West  Riding  of  Yorkshire,  provides 
that  they  be  so  registered  to  protect  the  grantee  against  sub- 
sequent bona  fide  conveyances  or  mortgages,  and  in  effect  is 
the  same  as  the  Reo-istrv  Acts  in  the  United  States.  In  that 
case  a  presumption  of  a  grant  of  coal  in  the  West  Riding  was 
urged  as  arising  from  certain  circumstances,  and  was  resisted 
on  the  ground  that  the  registry  should  determine  the  matter, 
and  that  there  was  no  registry  of  any  such  grant.  The  omis- 
sion was  relied  upon  as  effectually  rebutting  the  presumption 
The  point  does  not  appear  to  have  been  expressly  decided,  but  tc 
have  been  left  to  the  jury  by  Bailey,  J.  On  the  argument  at 
bar  Rex  v.  Long  Buckby  (7  East,  45),  was  cited,  and  appear? 
to  be  conclusive  that  such  a  case  presents  as  fair  a  subject  0/ 
presumption  as  any  other.  In  Rex  v.  Long  Buckby,  an  in- 
denture of  apprenticeship  had  been  lost,  and  was  sought  to  be 
proved  by  parol.  There  was  no  evidence  that  it  had  ever  been 
stamped,  and  no    registry   of    such    stamping    existed    at    the- 


PRESUMPTIVE  EVIDENCE.  575 

.319.  A  division  of  presumptions  of  fact,  more  ac- 
curate in  principle  and  more  useful  in  practice,  is 
obtained  by  considering  them  with  reference  to  their 
effect  on  the  burden  of  proof,  or  onus  probandi ;  the 

stamp  office,  where  it  would  have  naturally  existed,  had  there 
been  no  irregularity.  But  the  court  held  that  after  a  lapse  of 
nearly  twenty  years,  during  which  the  indenture  of  appren- 
ticeship had  been  acted  upon  as  valid,  the  evidence  of  non- 
registry  was  not  per  se  sufficient  to  repel  the  presumption  that 
it  had  been  properly  stamped,  but  that  it  would  rather  pre- 
sume that  the  stamping  had  been  performed,  and  the  registry 
in  the  proper  office  omitted  by  mistake.  In  Cowen  and  Hill's 
notes  to  Phillips  on  Evidence,  it  is  pointed  out,  as  throwing 
light  upon  the  question  as  to  the  presuming  of  a  deed  of  con- 
veyance, where  no  registration  of  such  deed  exists,  that  the 
case  of  the  stamp  is  much  stronger  as  to  the  presumption  of 
irregularity,  than  the  case  of  the  registry  of  a  deed  could  be. 
For  "this  was  a  case  where,  without  a  stamp,  the  indentures 
would  have  been  a  nullity  to  all  intents,  and  where  in  the 
•■egular  course  of  things  there  must  have  been  a  registry.  It 
,v?s  surely  much  stronger  against  the  presumption  of  the 
omission  to  register  a  deed  of  conveyance.  The  latter  are 
valid  as  against  the  party  without  registry,  and  ths  grantee 
being  in  possession,  they  would  be  valid  against  all  the  world, 
purchasers  and  mortgagees  included.  Governcur  v.  Lynch,  2 
Paige,  300,  301,  and  cases  cited.  Neither  are  registering  acts 
imperative,  nor  is  there,  in  case  of  a  deed,  any  great  danger  in 
omitting  to  register.  It  is  entirely  optional  with  the  party, 
and  if  purchasers  or  mortgagees  are  uninjured  bv  lack  of  con- 
structive notice,  none  others  can  complain.  Where  notice 
alone  is  the  object,  it  is  given  by  a  change  of  possession  to 
the  practice;  and  an  absolute  deed  may  ordinarily  be  held 
from  the  record  without  any  danger.  Indeed,  this  is  often  so 
in  practice.  And  it  follows  that  there  is  nothing  in  the  omis- 
sion to  register  necessarily  inconsistent  with  the  common 
presumption,  which  involves  the  previous  existence  and  loss 
[of  the  deed]  and  may  equally  well  include  the  non-registrv." 
Adverse  possession  it  seems  must  be  shown,  before  any  pre- 
sumption will  be  made  in  favor  of  a  claimant.  Wadsworth- 
ville  School  v.  Meelze,  4  Rich.  347.  Permissive  possession 
will  raise  no  such  presumption.  Roxbury  v.  Huston.  37 
Maine,  42. 


576      SECONDARY    RULES     OF    EVIDENCE. 

general  principles  and  rules  of  which  have  been  ex« 
plained  in  the  first  part  of  the  present  Book.  (i) 
Proesumptiones  hominis,  or  presumptions  of  fact  are 
divided  into  slight  and  strong,  according  as  they  are 
or  are  not  of  sufficient  weight  to  shift  the  burden  of 
proof.  (/)  Slight  presumptions,  although  sufficient 
to  excite  suspicion,  or  to  produce  an  impression  in  favor 
of  the  truth  of  the  facts  they  indicate,  do  not,  when 
taken  singly,  either  constitute  proof  or  shift  the  burden 
of  proof.  Thus,  the  fact  of  stolen  property  being  found 
in  the  possession  of  the  supposed  criminal,  a  long  time 
after  the  theft,  though  well  calculated  to  excite  sus- 
picion against  him,  is,  when  standing  alone,  insufficient 
even  to  put  him  on  his  defense.  (k)  So,  where  money 
has  been  stolen,  and  money,  similar  in  amount  and  in 
the  nature  of  the  pieces,  is  found  in  the  possession  of 
another  person  ;  but  none  of  the  pieces  are  identified, 
and  there  is  no  other  evidence  against  him.  (/)  And 
in  the  civil  law,  where  a  guardian  who  originally  had 
no  estate  of  his  own,  became  opulent  during  the  con- 
tinuance of  his  guardianship,  this  fact,  standing  alone, 
was  deemed  insufficient  to  raise  even  a  prima  facie 
case  of  dishonesty  against  him  ;  (in)  the  Code  justly 
observing,  "  nee  enim  pauperibus  industria,  vel  aug- 
mentum  patrimonii  quod  laboribus,  et  multis  casibus 
quoeritur,  interdicendum  est."  (n)  To  this  class  also 
belong  the  presumption  of  guilt,  derived  from  foot 
marks,  resembling  those  of  a  particular  person,  being 

(0  Supra,  pt.  I,  ch.  2.  Westenbergius,    Principia    Juris,   lib. 

(/)  "  Prsesumptio    [hominis]  recte  12,  tit.  3,  §§  26,  27. 
dividitur    in    leviorem,    et    fortiorem.  (/•)  Supra,  bk.  2,  pt.  2. 

Levior  movet  suspicionem,  et  judicem  (/)  1   Stark.   Ev.  569,   3rd  Ed.  ;  Id. 

quodammodo  inclinat ;  sed  per  se  nul-  854,  4th  Ed. 

lum  habit    juris  effectum,    nee  onere  (;«)  Voet.   ad   Pand.   lib.   22    tit.   3, 

probandi  levat."    Huberus,  Prael.  Jur.  n.  14  ;  2  Ev.  Poth.  345. 
Civ.  lib.   22,  tit.   3,  n.   15.      See  also  («)  Cod.  lib.  5,  tit.  51,1.  Id 

Matth.    de    Prob.    c.    2,  nn.     1    &  5  ; 


PRESUMPTIVE    nv/DENCh.  $77 

found  on  the  snow  or  ground  near  the  scene  of  crime  ; 
(o)  the  presumption  of  homicide  from  previous  quar- 
rels, (/)  or  from  the  accused  having  a  pecuniary  inter- 
est in  the  death  of  the  deceased.  (^) 

320.  But  although  presumptions  of  this  kind  are  of 
no  weight  when  standing  alone,  still  they  not  only  form 
important  links  in  a  chain  of  evidence,  and  frequently 
render  complete  a  body  of  proof  which  would  otherwise 
be  imperfect ;  but  the  concurrence  of  a  large  number 
of  them  may  (each  contributing  to  its  individual  share 
of  probabilty)  not  only  shift  the  onus  probandi,  but 
amount  to  proof  of  the  most  convincing  kind,  (r) 
"A  man's  having  observed  the  ebb  and  flow  of  the 
tide  to-day,"  observes  an  eminent  divine,  (s)  "  affords 
some  sort  of  presumption,  though  the  lowest  imagin- 
able, that  it  may  happen  again  to-morrow ;  but  the 
observation  of  this  event,  for  so  many  days,  and 
months,  and  ages  together,  as  it  has  been  observed  by 
mankind,  gives  us  a  full  assurance  that  it  will."  Con- 
victions, even  for  capital  offenses,  constantly  take 
place  on  this  kind  of  evidence  ;  (/)  and  the  following 
good  illustration,  in  a  civil  case,  is  given  by  Pothier 
from  the  text  of  the  Roman  law  :  (u)  "  A  sister  was 
charged  with  the  payment  of  a  sum  of  money  to  her 
brother;  after  the  death  of  the  brother,  there  was  a 
question,  whether  this  was  still  due  to  his  successor. 
Papinian   decided,  (v)  that  it  ought  to  be  presumed 

(0)  Mascardus  de   Probat,  quoest.   8,  de   Crim.   ad  lib.  48  Dig.  tit.  15,  c.  6  ; 

nn.  21-23  ;  R-  v.  Britton,    r    Fost.  &  Voet.  ad  Pand.  lib.  22,  tit.  3,  n.  18  ;  1 

F.  354.  Stark.  Ev.  570,  3rd  Ed.  ;  Id.  855,  4th 

(p)  Domat,  Lois  Civiles,  Part  I,  liv.  Ed. 

3,  tit.  6,  Preamb.  (s)  Butler's    Analogy    of   Religion.. 

(q)  3  Benth.  Jud.  Ev.  1S8.  Introduction. 

(r)  1  Ev.  Poth.  art.   815,   816  ;  Hu-  (/)  See  infra,  sect.  3,  and  App. 

berus,   Preel.  Jur.   Civ.  lib.   22,  tit.  3,  (u)  1  Ev.  Poth.  art.  816. 

nn.   4  and    16;  Id.       Positiones   Jur.  (?')  "  Denied,"  in  Evans's  translation 

sec,  Pand.  lib.  22,  .tit.  3,  n.  19  ;  Matth.  of  Pothier,  is  an  obvious  misprint. 
VI 


578      SECONDARY    RULES    OF    EVIDENCE. 

that  the  brother  had  released  it  to  his  sister;  and  he 
founded  the  presumption  of  such  release  on  three  cir- 
cumstances, i.  From  the  harmony  which  subsisted  be- 
tween the  brother  and  the  sister ;  2.  From  the  brother 
having  lived  a  long  time  without  demanding  it;  3. 
From  a  great  number  of  accounts  being  produced 
which  had  passed  between  the  brother  and  sister  upon 
their  respective  affairs,  in  none  of  which  was  there  any 
mention  of  it.  Each  of  these  circumstances,  taken 
separately,  would  only  have  formed  a  single  presump- 
tion, insufficient  to  establish  that  the  deceased 
had  released  the  debt ;  but  their  concurrence  ap- 
peared to  Papinian  to  be  sufficient  proof  of  such  re- 
lease." (w) 

321.  Strong  presumptions  of  fact,  on  the  contrary, 
shift  the  burden  of  proof,  even  though  the  evidence 
to  rebut  them  involve  the  proof  of  a  negative,  (x) 
The  evidentiary  fact  giving  rise  to  such  a  presump- 
tion, is  said  to  be  "prima  facie  evidence"  of  the  prin- 
cipal fact  of  which  it  is  evidentiary.  Thus,  possession 
is  prima  facie  evidence  of  property  ; '    and  the  recent 

(70)  This  is  the  law  "  Procula,"  Railway  Company,  L.  Rep.,  5  Q.  B. 
which  will  be  found  Dig.  lib.  22,  tit.  411  ;  S.  C.  (in  Cam.  Scac),  6  lb.  759. 
3,  1.  26.  Sir  W.  D.  Evans,  in  his  "  Praesumptio  fortior  vocatur,  quse  de- 
valuable  edition  of  Pothier,  observes  terminat  judicem,  ut  credat,  rem  certo 
on  this  passage,  that  it  does  not  suf-  modo  se  habere,  non  tamen  quin  sen- 
ficiently  appear  from  the  law,  as  given  tiat,  earn  rem  aliter  se  habere  posse, 
in  the  Digest,  that  the  brother  had  Ideoque  ejus  hie  est  effectus,  quod 
lived  any  great  length  of  time,  or  that  transferat  onus  probandi  in  adversa- 
harmony  had  existed  between  him  rium,  quo  non  probante,  pro  veritate 
and  his  sister.  He  seems,  however,  to  habetur."  Huberus,  Pnel.  Jur.  Civ. 
have  overlooked  the  phrase  "quamdiu  lib.  22,  tit.  3,  n.  16.  See  also  Heinec. 
vixit,"  ami  the  peculiar  expression  ad  Pand.  Pars.  4,  §  124  ;  Matth.  de 
"  desideratum."  Prob.    cap.  2,  n.    5  ;    Westenbergius, 

(x)  See    Byrne  v.  Boadle,  2  H.  &  C  Principia  Juris,  lib.  22,  tit.  3,  §  27. 
722  ;  Kearney  v.  London  &  Brighton 

1  It  is  a  presumption  of  law  that  every  species  of  property 
found  in  a  person's  possession  at  his  death  belongs  to  his  suc- 
cession, and  it  devolves   upon    any  one   claiming   any  of  such 


PRESUMPTIVE    EVIDENCE.  579 

possession  of  stolen  goods  is  sufficient  to  call  on  the 
accused  to  show  how  he  came  by  them ;  and  in  the 
event  of  his  not  doing  so  satisfactorily,  to  justify  the 
conclusion  that  he  is  the  thief  who  stole  them,  (jj/) 
So,  a  receipt  for  rent  accrued  due  subsequently  to  that 
sued  for,  is  prima  facie  evidence  that  all  rent  had  been 
paid  up  to  the  time  of  giving  the  receipt — as  it  is 
unlikely  that  a  landlord  would  not  first  call  in  the 
debt  of  longest  standing.  {£)  And  a  beautiful  in- 
stance of  this  species  of  presumption  is  afforded  by 
the  celebrated  judgment  of  Solomon,  who,  with  the 
view  of  ascertaining  which  of  two  women  who  laid 
claim  to  a  child,  was  really  the  mother,  gave  orders,  in 
their  presence,  for  the  child  to  be  cut  in  two,  and  a 
part  given  to  each  ;  on  which  the  true  mother's 
natural  feelings  interposed,  and  she  offered  rather  to 
abandon  her  claim  to  the  child  than  suffer  it  to  be  put 
to  death,  (a)  ' 

(y)  See  bk.  2,  pt.  2.  (z)  Gilb.  Ev.  157,  4th  Ed.  (a)  1  Kings,  iii.  16. 

property  to  establish  his  title  beyond  question.  Succession  of 
Alexander,  18  La.  Ann.  337.  Possession  of  personal  property 
is  prima  facie  evidence  of  ownership.  Goodwin  v.  Garr,  8 
Cal.  615  ;  Vining  v.  Baker,  53  Me.  544  ;  Fish  v.  Skut,  21  Barb. 
(N.  Y.)  7,^t,;  Entreken  v.  Brown,  32  Pa.  St.  364.  But  the  pre- 
sumption of  title  from  possession  arises  only  when  the  pos- 
session proved  appears  to  have  been  perfectly  consistent  with 
an  unqualified  ownership.  A  grant  will  not  be  presumed 
when  the  possession  is  explained  by  evidence,  showing  that  it 
was  taken  in  virtue  of  some  qualified  interest  or  estate,  less 
than  that  of  an  absolute  title.  Colvin  v.  Warford,  20  Md.  357. 
Where  property  is  found  in  possession  of  several,  individuals, 
the  law  refers  the  possession  to  him  who  has  the  title.  Lenoir 
v.  Rainey,  15  Ala.  667.  Govenorv.  Campbell,  17  Ala.  566;  Mil- 
ler v.  Fraley,  23  Ark.  735  ;  Maples  v.  Maples,  Rice  (S.  C.)  Ch. 
300;  see  Wicks  v.  Adirondac  Co.,  4  Thomp.  1  C.  250. 

1  Bien  que  les  textes  bibliques  ne  parlent  point  express6- 
ment  des  presomptions  et  que  l'Ecriture  sainte  en  fournisse 
tres  pen  d'exemples,  leur  existence  et  leur  admissibility  sont 
cependant  indubitables  dans  le  droit   Judalque.     Elles  etaient 


58o      SECONDARY    RULES     OF    EVIDENCE. 

322.  Presumptions  of  this  nature  are  entitled  to 
great  weight,  and  when  there  is  no  other  evidence,  are 
generally  decisive  in  civil  cases,  (b)      In  criminal,  and 

(l>)  Huberus,  Pnel.  Jur.  Civ.  lib.  22,  tit.  3,  n.  16. 

tantot  abandonees  a  la  prudence  des  juges,  tantot  imposees 
par  la  loi  (Comp.  art.  1350,  et  1353,  C.  Nap.).  Les  unes  et  les 
autres  avaient  lien  soit  en  matiere  civile  soit  en  matiere  crimi- 
nellc.  Le  premier  exemple  que  nous  donne  la  Bible  des  pre- 
somptions  abandonees  a  la  sagesse  des  juges  est  le  jugement 
civil  de  Solomon:  11  Kings,  16.  Le  second  exemple  se  ren- 
contre dans  le  jugement  crirninel  render  par  Daniel  contre 
les  accusateurs  de  Susanne.     Daniel,  xiii.  51. 

Concernant  presomptions  imposees  par  la  loi.  Moise 
deja  connaissait  et  edictait  ces  presomptions  legales  admises 
ante  factum,  dont  Montequieu  a  dit.  "  En  fait  de  presomption 
celle  de  la  loi  vaut  mieux  que  celle  de  l'homme.  .  .  .  Lors- 
que  le  juge  presume,  les  jugements  deviennent  arbitraires  ; 
Esprit  des  Lois,  liv.  xxix.  Elles  se  recontrent  civilement  on 
criminellement :  Dans  la  regie  qui  n'admet  pas  la  verite 
puisse  avec  certitude  resulter  d'une  deposition,  "  non  stabit 
lestis  unus  contra  aliquem."  Deut.  xix.  15.  Dans  la  regie  qui 
vent  que  cete  verite  se  rencontre  au  contraire  dans  la  gemina- 
tion de  deux  ou  trois  depositions:  Sed  in  ore  duorum  aut 
trium  lestium  stabit  omne  verbum  (Eod.  Loc).  Dans  la 
regie  decretant  qu  in  certains  cas  le  serment  letis  de  usoire 
devait  etre  reprete  pour  une  verite:  "Jusjurandum  ecrit  in 
medio  et  elle,  riddere  non  cogetus."  Exod.  xxii.  11. 

Les  presomptions  etaient  admises  comme  moyen  de  preuve, 
par  le  droit  Indien. 

Leslois  de  Manou  donnent  une  nomenclature  de  certaines 
presomptions  legales,  que  Ton  peut  diviser  en  quatre  catego- 
ries. 

Presomption  de  mensonge  de  la  part  des  parties. 

"  Celui  qui  invoque  le  temoignage  d'un  homme  qui  n'etait 
pas  present ;  celui  qui  apres  avoir  declare  une  chose  la  nie  ; 
celui  qui  ne  s'apercoit  pas  que  les  raisons  qu'il  avait  alleguees 
d'abord  et  celles  qu'il  fait  valoir  ensuite  sont  en  contradiction; 

(  Vlui  que,  apres  avoir  donne,  certains  details,  modifie  son 
premier  recit  .  .  .  ceux-la  sont  tous  deboutes  de  leurs  de- 
mandes  "  (Livre  viii,  stances  53,  54). 

"  Si  le  demandeur  n'exprime  pas  les  motifs  de  sa  plainte, 
il  doit  etre  puni  d 'apres  la  loi,  par  un  chatiment  corporel  ou 
par  une  amende  "  (stance  58). 


PRESUMPTIVE    EVIDENCE.  581 

more  especially  in  capital  cases,  a  greater  degree  of 
caution  is,  of  course,  requisite,  and  the  technical  rules 
regulating  the  burden  of  proof  are  not  always  strictly 
adhered  to.  (c) 

(c)  Id.     See  R.  v.  Hadfield,  27  Ho.  St.  Tr.  1282,  1353. 

Presomption  de  mensonge  de  la  part  des  temoins. 

"  Le  temoin  auquel  dans  1'intervalle  de  sept  jours  apres  sa 
deposition,  il  survient  une  maladie,  un  accident  par  le  feu,  ou 
la  mort  d'un  parent,  doit  etre  condamne  a  payer  la  dette  et 
une  amende  "  (Livre  viii,  stance  108). 

Presomption  de  subornation  de  temoins. 

"  Celui  que  s'est  entretenu  avec  des  temoins  dansun  endroit 

ou    il    ne   devait    pas est   deboute    de   sa    demande " 

(Livre  viii,  stance  55). 

Presomption  d'aquiescement  a  la  demande  l'adversaire. 

"  Celui  qui  quitte  le  tribuual  .....  est  deboute  de  sa  de 
mande"  (Ibid). 

Les  presomptions  etaient  admises  comme  moyen  de  preuve 
par  le  droit  Athenien. 

Soit  qu'elles  decoulassent  de  la  loi,  auquel  cas  elles  n'ad- 
mettaient  aucune  preuve  contraire,  soit  qu'elles  fussent  lais- 
sees  a  la  prudence  du  juge,  et  alors  elles  pouvaient  etre  com- 
battues  de  toutes  manieres. 

Presomption  legale. 

Une  seule  presomption  legale  existait,  celle  resultant  de  la 
chose  jugee,  reputee  verite  judicaire.  "  De  quibus  prius  sive 
privato  sive  publico  judicio  a  Judicibus  pronunciatum  est,  aut 
populus  scitum  fecit,  de  iisdem  iterum  magistratus  Judices  ne 
danto,  neque  in  suffragia  mittunto,  neque  eorum,  quae  leges 
non  concedunt,  accusare  permittunto  "  (Demosth.,  adv.  Tim- 
ocrat). 

Presomptions  laissees  a  la  prudence  des  juges. 

Elles  avaient  indifferemment  lieu  dans  les  causes  civiles  et 
dans  les  causes  criminelles. 

En  son  troisieme  plaidoyer  contre  Aphobus,  Demosthenes 
dit  a  propos  des  attaques  dirigees  contre  la  deposition 
d'Etienne  :  "  Quod  esse  verum  testimonium  perspicue  vobis 
omnibus  probabo,  non  praesumptionibus,  nee  rationibus  pros 
sentis  temporis  causa  confictis,  sed  eo,  quod  vobis  omnibus,  ut 
ego  arbitror,  justum  videbitur  "  Plus  loin  a  l'occasion  de  ses 
temoins  attiques  par  l'adversaire,  Demosthenes  dit  encore  : 
"  Suis  testibus  habere  fidem   vos  jubet,   meos  calumniatur  et 


582     SECONDARY    RULES    OF    EVIDENCE. 

323.  The  resemblance  between  inconclusive  pre 
sumptions  of  law,  and  strong  presumptions  of  fact,  can 
not  have  escaped  notice — the  effect  of  each  being  to 

vera  dixisse  nega;.  Ego  autem  illos  veros  estendam  praesump- 
tionibus." 

Au  premier  discours  contre  Onetor,  pour  prouver  qu'Apho- 
bus  n'avait  point  regu  la  dot  de  sa  femme,  Demosthenes  in- 
voque  les  presomptions.  "  Jam  confessi  initio  sunt  ipsi  non 
numeratam  esse  dotem,  nee  in  sua  potestate  habuisse  Apho- 
bum.  Patet  autem  etiam  e  praesumptionibus  propter  ea,  quae 
dixi,  eos  debere  maluisse  dotem  quam  immisere  in  rem  fami- 
liarem  Aphobi  sic  periclitaturam."  Et  afin  de  demontrer  que 
cette  femme  a  simule  une  separation  il  ajoute  :  "  Partim  autem 
testes  adducam,  partim  magnas  inductiones  firmasque  prae- 
sumptiones  ostendam." 

A  defaut  de  toutes  preuves,  les  presomptions  suffisaient  a 
elles  seules  pour  motiver  une  condamnation,  ainsi  que  le  de- 
clare positivement  Antiphon  dans  sa  plaidoirie  pour  un 
Chorege.  "  Si  qua  res  in  occulto  gesta  est.  Si  qua  nex  c,lam 
comparata,  procul  testibus,  ibi  necesse  est  Judices  accusato- 
remque  reumque  diligenter  percontari,  et  ex  amborum  praedica- 
tionibus,  subtili  conjectura  venum  venari,  minutissima  quaeque 
vestigia  suspicionum  persequi,  et  sic  pronunciare,  magis 
secundum  probabiles  praesumptiones,  quan  ex  certa  scientia." 

Ce  fut  sans  produire  un  seul  temoin  qu'Eschine  fit  condam- 
ner  Timmarque  au  moyen  d'inductions  et  de  presomptions,  bien 
que  cependant  cet  accuse  fut  defendu  par  Demosthenes  (defals. 
Legat.) :  "  Age  hue  assiste,  et  responde  mihi  :  neque  ehim  per 
imperitiam  habere  te  negabis,  quid  dicas.  Cum  enim  novas 
caasas  tanquam  fabuJas,  easque  sine  testibus  ad  praefinitam 
diem  accusatori  vincas  :    ex  eo    constat,  te  esse  acerrimum." 

Les  presumptions  etaient  admises  comme  moyen  depreuve, 
par  le  droit  Romaine. 

Personne,  assurement,  quand  il  s'agit  de  repressions  penales 
surtout,  ne  doit  etre  condamne  a  la  legere,  et  sur  de  vagues 
soupcons ;  car  la  justice  courrait,  a  chaque  instant,  le  plus 
grand  risque  de  prendre  l'apparence  pour  la  realite.  C'est 
done  avec  infiniment  de  raison  et  de  juridicite,  que  Trajan  a 
edicte:  "  Nee  de  suspicionibus  debere  aliquem  damnari.  Sa- 
tins enim  esse  impunitum  relinqui  facinus  nocentisquam  inno- 
centem  damnare  "  (Dig.  lib.  xlviii.,  tit.  xix.,  lex  v.).  Maxime 
qu'on  croirait  tiree  de  l'lmitation,  et  que  nerepudierait  point 
l'Evangile. 


PRESUMPTIVE    EVIDENCE.  583 

assume  something  as  true  until  it  is  rebutted ;  and, 
indeed,  in  the  Roman  law,  and  in  other  systems  where 
the   decision    of  both    law    and    fact   is  entrusted  to 

Mais,  lorsqu'en  l'absence  de  preuves  proprement  dites,  la 
verite  jaillit,  presque  evidente,  de  faits  patents  ou  d'un  con- 
cours  de  circonstances  qui  ne  laissent,  pour  ainsi  dire,  aucune 
place  au  doute,  ni  raeme  a  l'erreur,  force  est  a  la  justice  d'ac- 
cepter  ces  indices  revelateurs,  ces  presomptions  equipollentes 
aux  demonstrations  les  plus  rigoureuses,  sous  peine  de  se 
des*irmer  devant  le  crime  et  de  primer  l'immoralite.  Aussi, 
les  presomptions  ont-elles  ete  admises  en  droit  romain,  dans 
les  matieres  civiles :  "  Indicia  certa  quae  non  jure  respuuntur, 
non  minorem  probationis  quam  instrumenta  continent  fidem  " 
(Cod.,  lib.  iii.,  tit.  xvii.,  lex  xix.).  Et  dans  les  causes  crimin- 
elles:  "  Sciant  cuncti  accusatores,  earn  se  rem  deferre  in  pub- 
licam  notionem  devere  quae  munita  sit  idoneis  testibus,  vel  in- 
structa  apertissimis  instrumentis,  vel  indiciis  ad  probationem 
inclubitatis,  et  luce  clarioribus  expedita  "  (Cod.,  lib.  iv.,  tit.  xx.. 
lex  xxv). 

Les  presomptions  etaient  de  trois  especes  : 

i°  Celles  qui  n'admettaient  aucune  preuvecontraire,  et  que 
les  interpretes  ont  appelees  juris  et  dejure;  comme  celles 
tirees  du  serment  et  de  la  chose  jugee  (art.  1350  C.  Nap.). 
"  Praesumptiones  juris  et  dejure  appellant  interpretes,  quoties 
jus  praesumit  aliquid,  ac  super  eo  praesumpto  disponit  nee  ad- 
mittit    in    contrarium    probationem "    (Voet.,    Dig.,    lib.    xii. 

tit.  iii.). 

Presomptions  que  commandait  imperieusement  la  necessite 
de  mettre  fin  aux  proces  et  de  ne  pas  les  rendre  inextricables 
par  la  contrariete  des  solutions  :  "  Ne  modus  litium  multipli- 
catus,  summam  atque  inextricabilem  faciat  difficultatem ; 
maxime  si  diversa  pronunciarentur  "  (Dig.,  lib.  xliv.,  tit.  ii.) 
lex  vi.). 

Pour  que  la  chose  jugee  existat,  il  fallait  d'abord  qu'une 
contestation  fut  definitivement  tranchee  par  un  jugement  reg- 
ulier,  prononcant  la  condamnation  ou  l'absolution  du  defen- 
deur  :  "  Res  judicata  dicitur,  quae  finera  controversiarum  pro- 
nuntiatione  judicis  accipit :  quod  vel  condemnatione  vel  abso- 
tione  contingit  "  (Digest,  lib.  xlii.,  tit.  i.,  lex  i.). 

II  falliat  de  plus  que  la  chose  jugee  ne  fut  invoquee  que 
dans  les  conditions  rigoureusement  determinees  par  les  textes: 
"  Quum  quaeritur  haec  exceptio  noceat  nee  ne  ;  inspiciendum 
est  an  idem  corpus  sit  "  (Dig.,  lib.  xliv.,  tit.  ii.,  lex  xii.)  ;  "  quan 


584     SECONDARY    RULES    OF    EVIDENCE. 

a  single  judge,  the  distinction  between  them  becomes 
in  practice   almost   imperceptible,  (d)     But   it   must 

(d)  "  Quselibet    exempla   fortiorum,  feruntur,    si   hac   distinctione    placeat 

quas  diximus  Prassumptionum,  quate-  uti."    Huberus,  Prsel.  Jur.  Civ.  lib.  22, 

nus  legibus  prodita  sunt,  ad  hanc  clas-  tit.  3,  n.  18.      See   also  Gresley,  Evi- 

sem  "  (soil,  proes.  jur.)  "  non  male  re-  dence,  in  Eq.  483-4,  2nd  Ed. 

titas  eadem  idem  jus  "  (lex  xiii.).  "  Et  eadem  causa  petendi,  et 
eadem  conditio  personarum  ;  quae  nisi  omnia  concurrunt  alia 
res  est"  (lex  xiv.).  Conditions  si  sages,  que  les  lois  modernes 
n'ont  pu  rien  en  modifier:  "Cum  de  hoc,  an  eadem  res  est 
quseritur,  haec  spectanda  sunt,  personse :  idipsum  de  quo 
agitur:  proxima  actionis  causa"  (Dig.,  eod.  tit.,  lex  xxvii., 
art.  1350  Cod.  Nap.). 

Ces  conditions  remplies,  la  chose  jugee  etait  consideree 
comme  verite  judicaire  :  "  Res  judicata  pro  veritate  habetur  " 
(Dig.,  lib.  1.,  tit.  xvii.,  lex  ccvii.). 

Verite  judiciaire  respectee  a  ce  point  de  n'admettre  plus  de 
critique,  ni  meme  d'appreciation,  ainsi  que  nous  l'apprend  un 
passage  de  Pline  (lib.  i.,  epist.  v.).  L'avocat  Regulus  s'effor- 
cait  de  compromettre  Pline,  en  lui  demandant  son  opinion  sur 
un  certain  Modestus.  Pline  ayant  habilement  elude  ses  ques- 
tions, Regulus  insista  pour  lui  faire  dire  au  moins  ce  qu'il 
pensait  de  l'attachment  pour  le  prince,  de  cet  homme  qu'avait 
exile  Domitien.  Pline  alors,  evitant  encore  de  repondre  in- 
voqua  ainsi  la  chose  jugee  :  "  Quaeris,  inquam  quid  sentiam  ? 
At  ego  ne  interrogare  quidem  fas  puto  de  quo  pronunciatum 
est."  Regulus,  confondu,  garda  le  silence,  et  la  foule 
applaudit. 

Quant  a  l'autorite  du  serment,  elle  l'emportait  encore,  sui- 
vant  Paul,  sur  celle  de  la  chose  jugee:  "Jusjurandum  .  .  . 
majorem  auctoritatem  habet  quam  res  judicata  "  (Dig.,  lib.  xii, 
tit.  ii.  lex  ii.). 

A  ces  presomptions,  les  seules  qu'habituellement  indiquent 
les  auteurs,  il  faut  ajouter  les  presomptions  suivantes  : 

Que,  dix  moisapresla  mort  du  pere  de  famille,  tout  enfant, 
ne  de  la  veuve,  etait  repute  illegitime  :  "  Post  desem  menses 
mortis  natus,  non  admittetur  ad  legitimam  haereditatem  "  (Dig., 
(ib.  xxxviii.,  tit.  xv.,  lex  iii.,  n°  xi.). 

Que,  reciproquement,  etait  legitime  1 'enfant  ne  le  cent 
quatre  vingt-deuxieme  jour  apres  la  mort  du  pere:  "  De  eo 
autem,  qui  centesimo  octogesimo  secundo  die  natus  est,  Hip- 
pocrates scripsit,  ct   divus   Pius  pontificibus   rescripsit,  juste 


PRESUMPTIVE    EVIDENCE.  585 

never  be  lost  sight  of  in  the  common  law,  where  the 
functions  of  judge  and  jury  are  usually  kept  distinct. 

tempore  videri  natum  :  nee  videri  in  servitutem  conceptum 
cum  mater  ipsius  ante  centesimum  octogesimum  secundum 
diem  esset  manumissa  '  (Dig.,  Eod.  loc,  n°  xii.). 

Qu'adultere  etait  celui-la  qui,  apres  avoir  ete  somme  trois 
foir  de  cesser  des  relations  suspectes,  etait  trouve  avec  la 
fern  me  soupconnee  :  In  domo  uxoris,  vel  in  popinis,  aut  in 
suburbanis,  etc.  ...  "Si  quis  cum  suspectum  habet  de  sua 
uxore.  ter  in  scriptis  denunciaverit  sub  prsesentia  trium  tes- 
tium  fide  dignorum,  et  post  invenerit  eum  convenientem  uxori 
suae  in  domo  sua,  vel  uxoris,  vel  adulteri,  vel  in  popinis,  aut 
in  suburbanis  :  sine  periculo  eum  perimat.  Si  alibi  inveniat, 
tribus  testibus  convocatis  tradat  eum  judici:  qui  nulla  alia 
ratione  quaesita  habet  puniendi  licentiam  "  (Cod.,  lib.  ix.,  in 
Auth.  Novell,  cxvii,  cap.  xv.). 

Qu'un  individu  etait  reellement  debiteur,  lorsqu'oblige, 
nominibus,  il  avait  laisse  passer  un  temps  prolonge,  sans  user 
de  l'exception  non  numeratae  pecuniae :  "  Plane  si  quis  debere 
se  scripserit  quod  ei  numeratum  non  est,  de  pecunia  minime 
numerata  post  multum  temporis  exceptionem  opponere  non 
potest"  (Inst.  Just.,  lib.  iii.,  tit.  xxi.  Add.  Cod.,  lib.  iv.,  tit 
xxii.,  lex  xiv.). 

20  Celles  qui  admettaient  la  preuvecontraire,  que  les  inter- 
pretes  ont  appelees  :  Juris  tantum,  "  et  quas  receptem  est  in 
judiciis  vice  probationum  haberi ;  necessitatemque  probandi 
remittere"  (Pothier,  Pandect.).  "Juris  praesumptio  dicitur, 
quae  ex  legibus  introducta  est,  ac  pro  veritate  habetur  donee 
probatione  aut  praesumptione  contraria  fortiori  enervata  fuerit  " 
(Voe't.,  Eod.  loc). 

Telles  etaient :  La  presomption  de  liberation,  resultant  de 
la  laceration  de  l'obligation  :  "  Si  chirographum  cancellatum 
fuerit,  licet  praesumptione  debitor  liberatus  esse  videtur,  in 
earn  tamen  quantitatem,  quam  manifestis  probationibus  cred- 
itor sibi  abhuc  deberi  ostenderit,  recte  debitor  convenitur" 
(Dig.,  lib.  xxii.,  tit.  iii.,  lex  xxiv.)  ;  ou  de  sa  remise  au  debiteur  : 
"  Et  ideo,  si  debitore  meo  reddiderim  cautionem,  videtur  inter 
lorsque  la  loi  presume,  elle  donne  au  juge  une  regie  fixe." 
nos  convenisse  ne  peterem  :  profuturamque  ei  conventionis 
exceptionem  placuit  "  (Dig.,  lib.  ii.,  tit.  xiv.,  lex  ii.,  n*  i.). 

La  presomption  que,  ne  le  septieme  mois  d'un  mariage,  un 
enfant  etait  legitime  :  "  Septimo  mense  nasci  perfectum  partum, 


/ 


536     SECONDARY    RULES    OF    EVIDENCE. 

Unfortunately,  however,  the  line  of  demarcation  be- 
tween the  different  species  of  presumptions  has  not 

jam  acceptum  propter  auctoritatem  doctissimi  viri  Hippo- 
cratis  :  et  ideo  credendum  est,  eum  qui  ex  justis  nuptiis  septimo 
mense  natus  est,  justum  filium  esse"  (Dig.,  lib.  i.,  tit.  v.,  lex 
xii.). 

La  presomption  d'illegitimite  au  cas  d'absence,  ou  de  mal- 
adie  du  mari :  "Filium  eum  definimus  qui  ex  viro  et  uxore 
ejus  nascitur.  Sed  si  fingamus  abfuisse  maritum,  verbi  gratia. 
per  decennium,  reversum  anniculum  invenisse  in  domo  sua: 
placet  nobis  Juliani  sententia,  hunc  non  esse  mariti  filium. 
Non  tamen  ferendum  Julian  us  ait,  eum,  qui  cum  uxore  sua 
assidue  moratus  nolit  filium  adgnoscere,  quasi  non  suum.  Sed 
mihi  videtur  quod  et  Scaevola  probat,  si  constet  maritum 
aliquandiu  cum  uxore  non  concubuisse,  infirmitate  inter- 
veniente,  vel  alia  causa:  vel  si  ea  valetudine pater familias  fuit, 
ut  generare  non  possit  :  hunc  qui  in  domo  natus  est,  licet 
vicinis  scientibus,  filium  non  esse  "  (Dig.,  lib.  i.,  tit.  vi.,  lex  vi.). 

La  presomption  que  chacun  contracte  pour  ses  heritiers : 
"  Si  pactum  factum  sit,  in  quo  heredis  mentio  non  fiat,  quoeri- 
tur  an  id  factum  sit  ut  ipsius  duntaxat,  persona  eo  statueretur 
Sed  quamvis  verum  sit,  quod  qui  excipit  probare  debeat  quod 
excipitur,  attamen  de  ipso  duntaxat,  ac  non  de  herede  ejus 
quoque  convenisse  petitor,  non  qui  excipit,  probare  debet : 
puta  plerumque  tarn  heredibus  nostris,  quam  nosmetipsis  cave- 
mus  "  (Dig.,  lib.  xxii.,  tit.  iii.,  lex  ix.). 

La  presomption  que  dans  la  condictio  indebiti,  celui-la  a 
recu  legitimement,  qui  avoue  qu'on  lui  a  paye,  en  ajoutant 
qu'il  lui  etait  reellement  du :  "  Sinvero  ab  initio  confiteatur 
quidem  suscepisse  pecunias,  dicat  autem  non  indebitas  ei  fuisse 
solutas,  praesumptionem  videlicet  pro  eo  esse  qui  accepit  nemo 
dubitat :  qui  enim  solvit,  nunquam  ita  resupinus  est,  ut  facile 
suas  pecunias  jactet,  et  indebitas  effundat :  et  maxime  si  ipse 
qui  indebitas  dedisse  dicit,  homo  diligens  est,  et  studiosus  pater 
familias,  cujus  personam  incredibile  est  in  aliquo  facille 
errasse  "  (Dig.,  lib.  xxii.,  tit.  iii.,  lex  xxv.). 

3°  Celles  que  n'indiquait  aucune  loi,  mais  qui  etaient  pro- 
bantes,  soit  insolement,  lorsque  leurgravite  semblait  suffisante, 
suit  par  leur  concours,  alors  que  legeres,  individuellement 
considerees,  elles  revetaient  cependant,  groupees  et  reuni'es 
tin  caracterede  force  proprea  determiner,  sinon  la  certitude,  du 
moins  une  excessive  probabilite  (art.  1353,  C.  Nap.).  "  Prse- 
sumptio  hominis  est,  cum  ex  ipsius  negotii  probabilibus  quali- 


PRESUMPTIVE    EVIDENCE.  587 

always    been    observed   with    the  requisite    precision,- 
We  find  the  same  presumption  spoken  of  by  judges, 

tatibus  ac  circumstantiis  aliquid  inducitur,  et  fidem  quamdam 
invenit  aliquando  majorem,  aliquando  minorem,  donee  con- 
trarium  probatum  aut  gravioribus  prsesumptionibus  inductum 
fuerit  "  (Voet.,  Loc.  sup.  cit.). 

L'histoire  nous  a  conserve  l'exempie  d'un  certain  nombre 
de  presomptions  assez  graves,  pour  avoir  isolement  servi  de 
base  a  de  remarquables  jugements. 

Nous  n'en  dirons  pas  autant  de  la  presomption  incroyable 
qui  va  suivre  et  de  la  solution  plus  incroyable  encore  qui  en 
fut  la  consequence. 

On  instruisait  contre  un  accuse,  quand,  traversant  le  forum, 
un  personnage  considerable  du  nom  de  Servillius  vint,  au 
grand  etonnement  de  tous,  prendre  place  au  banc  des  temoins 
et  dire  ;  Je  ne  sais  cedont  il  s'agit,  et  ne  connais  point  le  pre- 
venu,  mais  je  crois  devoir  apprendre  que  l'ayant  rencontre  un 
certain  jour  dans  un  endroit  assez  resserre  de  la  rue  Lauren- 
tina,  cet  homme  a  eu  la  malhonnetete  de  ne  pas  ranger  son 
cheval  pour  me  laisser  le  haut  du  pave  :  maintenant  que  les 
juges  avisent.  Et  sur  ce,  sans  se  donner  meme  la  peine  d'en- 
tendre  d'autres  depositions,  les  juges,  subitement  eclaires  par 
ce  lemoignage,  declarerent  le  pauvre  accuse  bien  et  dument 
convaincu  des  mefaits  qu'on  lui  reprochait  sous  ce  plaisant 
pretexte,  que  celui  qui  ne  savait  point  respecter  les  puissants 
devait  etre  capable  de  tons  les  crimes. 

"  Tot  elevatis  testibus,  unum,  cujus  nova  ratione  judicium 
ingressa  auctoritas  confirmata  est,  referam.  P.  Servillius  con- 
sularis,  censorius,  triumphalis,  qui  majorum  suorum  titulis 
Isaurici  cognomen  adjecit,  cum  foro  praeteriens  testes  dare 
videsset,  loco  testis  constitit,  ac  summam  inter  patronorum 
pariter  et  accusatorum  admirationem  sic  ortus  est.  '  Hunc  ego 
judices  qui  causam  dicit,  cujus  sit,  aut  quam  vitam  egerit, 
quamque  merito  vel  injuria  accusatur,  ignoro  ;  illud  tantum 
scio,  cum  occurrisset  mihi  Laurentina  via  iter  facienti  admodum 
angusto  loco  equo  descendere  noluisse  :  quod  an  aliquid  ad 
religionem  vestram  pertineat  ipsi  aestimabitis,  ego  id  suppri- 
mendum  non  putavi.'  Judices  reum,  vix  auditis  testibus,  dam- 
naverunt.  Valuit  enim  apud  eos  quum  amplitudo  viri,  turn 
gravis  neglectae  dignitatis  ejus  indignatio  ;  eumque,  qui  ven- 
erari  principes  nesciret  in  quodlibet  facinus  procursurum  cred- 
iderunt  "  (Val.  Max.,  lib.  viii.,  cap.  vi.). 

Temoin,  ce  trait  de  Galba,  adjugeant  un  cheval  litigieux  a 


588      SECONDARY    RULES    OF    EVIDENCE. 

sometimes  as  a  presumption  of  law,  sometimes  as  a 
presumption    of    fact,  sometimes   as   a   presumption 

celui  des  plaideurs  chez  lequel,  ce  cheval  mis  en  liberte, 
retournerait  ensuite:  "  At  in  jure  dicendo,  cum  de  proprietate 
juramenti  quaereretur,  levibus  utrinque  argumentis,  ettestibus, 
ideoque  difficili  conjectura  veritatis,  ita  decrevit,  ut  ad  locum 
ubi  adaquari  solebat,  duceretur  capite  involuto,  atque  ibiderr 
revelato,  ejus  esset,  ad  quem  sponte  se  a  potu  recepisset ' 
(Suet.,  Vit.  Galb.,  n°  vii.). 

Et  cet  autre  trait  de  Claude,  reconnaissant  une  maternite 
dissimulee,    en     enjoignant    a    la   mere    d'epouser    son    fils : 
"Feminam    non    agnoscentem   filium    suum,    dubia   utrinque 
argumentorum  fide,  ad  confessionem   compulit  indicto  matri 
monio  juvenis  "  (Suet.,  Vit.  Claud.,  n°  xv.). 

Temoin,  l'acquittementdes  freres  Clelius,  trouves  profonde- 
ment  endormis  dans  un  lit  contigu  a  celui  011  avait  ete  egorge 
leur  pere  :  "  Ouum  parricidii  causam  duo  fratres  Claelii  dicer- 
ent,  splendido  Tarracinae  loco  nati,  quorum  pater  T.  Clselius 
in  cubiculo  quiescens,  filiis  altero  lecto  cubantibus,  erat  in- 
teremptus,  neque  aut  servus  quisquam,  aut  liber  inveniretur 
ad  quem  suspicion  caedis  pertineret,  hoc  uno  nomine  absoluti 
sunt ;  quia  judicibus  plane  factum  est,  illos  aperto  cstio  in- 
ventosesse  dormientes.  Somnus  innoxiae  securitatis  certissi- 
mus  index  miseris  opem  tulit.  Judicatum  est.  enim,  rerum 
naturam  non  recipere,  ut,  occiso  patre,  supra  vulnerna  et 
cruorem  ejus,  quietem  capere  potuerunt  "  (Val.  Max.,  lib.  viii., 
cap.  i.,  n°  xiii.). 

Et  la  condamnation  de  Scantinius  Capitolinus,  uniquement 
fondee  sur  le  pudique  silence  et  et  l'attitude  decente  du  jeune 
homme  qu'il  avait  voulu  deshonorer  :  "  M.  Claudius  Marcel- 
lus,  asdilis  curulis,  C.  Scantinio  Capitolino,  tribuno  plebis, 
diem  adpopulum  dixit  quod  filium  suum  de  stuproappellasset : 
eoque  asseverante,  se  cogi  non  posse,  ut  adesset,  quia  sacro- 
sanctam  potestatem  haberet,  et  ob  id  tribunitium  auxilium  im- 
plorante,  totum  collegium  triburiorum  negavit,  se  intercedere, 
quo  minus  pudicitae  quasstio  perageretur.  Citatus  itaque 
Scantinius  reus,  uno  teste,  qui  tentatus  erat,  damnatus  est. 
Constat  juvenem  productum  in  rostra  defixo  in  terram  vultu 
Merseveranter  tacuisse,  verecundoque  silentio  plurimam  in 
iltionem  suam  valuisse  "  (Val.  Max.,  lib.  vi.,  cap.  i.,  n°  vii.). 

Com":;- specimen  de  reunion  et  de  concordance  de  plusieurs 
presomptions  on  trouve  au  Digeste  (lib.  xxii.,  tit.  iii.),  la  1q: 
XVI.  par  laquelle,  vu  l'affinite  des  [lersonnes—  les  comptes  an- 
terieurs   sans  mention  de  fidei-conmis — le  defaut  de  payemem 


PRESUMPTIVE    EVIDENCE.  589 

which  juries  should  be  advised  to  make,  and  some- 
times  as  one  which  it  was  obligatory  on  them  to 
make,  (e) a 

[e)  Phill,   &   Am.    Ev.   460,   461  ;  1  — as    calculated     to     convey    to    the 

Phill.  Ev.  470,  10th   Ed.     When  such  minds  of  the  jury  the  false  impression, 

language  is  found  in  the  judgments  of  that  when  the  possession  of  the  stolen 

the  superior  courts,  it  is  not  surprising  property  has   been   traced   to  the  ac- 

that   the  proceedings  of  inferior  ones  cused,  their  discretionary  functions  are 

should  exhibit  even  greater  inaccuracy  at    an    end.       Our  ablest   judges    tell 

and  confusion.    Nothing,  for  instance,  juries  in  such  cases,  that  they  ought, 

is   more   common   than  to  hear  a  jury  as  men  of  common  sense,  to  make  the 

told  from  the  bench,  that  when  stolen  presumption,  and  act  upon  it,  unless 

property  is  found  in  the  possession  of  it    be    rebutted,  either  by  the  facts  as 

a  party  shortly  after  a  theft,  tl.e   law  they  appear  in   the  evidence   for  the 

presumes  him  to  be  the  thief ; — a  di-  prosecution,  or  by  the  evidence  or  ex- 

rection  both  wrong  and  mischievous,  planation  of  the  accused. 

— l'empereur  Commode,  rejeta  la  compensation  que  voulait 
etablir  une  certaine  Procula:  "Procula  magnae  quantitatis 
fideicommissum  a  fratre  sibi  debitum,  post  mortem  ejus  in 
ratione  cum  heredibus  compensare  vellet,  ex  diverso  autem 
allegaretur,  nunquam  id  a  fratre,  quandiu  vixit,  desideratum, 
cum  variis  ex  causis  saepe  in  rationem  fratris  pecunias  ratio 
Proculae  solvisset :  divus  Commodus,  cum  super  eo  negotio 
cognosceret,  non  admisit  compensationem,  quasi  tacite  fratri 
fideicommissum  fuerit  remissum  "  (Dig.,  lib.  xxii.,  tit.  iii.,  lex 
xxvi.). — De  Gontil,  "  Essai  Historique  sur  les  Preuves,  sous 
les  Legislations  Juive,  Egyptienne,  Indienne,  Grecques  et 
Romaine."     Paris:  Durand,  1863. 

1  "  Presumptions  of  fact  (presumtiones  facti,  hominis,  judi- 
cis,  in  the  German  law  unjuristische  Wahrscheinlichkeiten), 
which  are  virtually  inferences,  based  on  inductive  as  distin- 
guished from  deductive  proof.  Among  these  we  may  mention 
the  inference  of  criminal  intent  or  malice  drawn  from  an 
illegal  act  ;#  and  the  inferences  of  guilt  drawn  from  attempts 
to  escape  or  evade  justice ;  from  suspicious  deportment  when 
charged  with  guilt ;  from  forgery  of  evidence;  from  anteced- 
ent preparations;  from  declarations  of  guilty  intentions  and 
threats ;  and  from  possession  of  the  fruits  of  the  offense. 
Presumptions  of  this  class  are  of  fact,  and  not  of  law,  and  are, 
simply  logical  inductions.  The  process  may  be  stated  as  fol- 
lows :  Experience  tells  us  that  certain  facts,  when  coexisting 
are  the  results  of  design;  here  these  facts  coexist;  therefor 
they  are  the  result  of  design.  The  form  is  deductive,  but  the 
whole  strain  of  the  argument  is  inducive.  Both  major  and  minor 


590     SECONDARY    RULES     OF    EVIDENCE. 

324.  We  now  come  to  the  consideration  of 
"Mixed  presumptions,"  or  as  they  are  sometimes 
called  Presumptions  of  mixed  law  and  fact,"  and 
"  Presumptions  of  fact  recognized  by  law."  These 
hold  an  intermediate  place  between  the  two  former; 
and  consist  chiefly  of  certain  presumptive  inferences 
which  from  their  strength,  importance,  or  frequent  oc- 
currence, attract  as  it  were  the  observation  of  the 
law  ;  and  from  being  constantly  recommended  by 
judges  and  acted  on  by  juries,  become  in  time  as 
familiar  to  the  courts  as  presumptions  of  law,  and  oc- 
cupy nearly  as  important  a  place  in  the  administration 
of  justice.  Some  also  have  been  either  introduced  or 
recognized  by  statute.  They  are  in  truth  a  sort  of  quasi 
praesumptiones  juris ;  and  like  strict  legal  presump- 
tions may  be  divided  into  three  classes:  1.  Where 
the  inference  is  one  which  common   sense  would  have 

1 

made  for  itself;  2.  Where  an  artificial  weight  is 
attached  to  the  evidentiary  facts,  beyond  their  mere 
natural  tendency  to  produce  belief ;  and,  3.  Where 
from  motives  of  legal  policy,  juries  are  recommended 
to  draw  inferences  which  are  purely  artificial.  The 
two  latter  classes  are  chiefly  found  where  long-estab- 
lished rights  are  in  danger  of  being  defeated  by  tech- 
nical objections,  or  by  want  of  proof  of  what  has 
taken  place  a  great  while  ago ;  in  which  cases  it  is 
every  day's  practice  forjudges  to  advise  juries  to  pre- 
sume without  proof,  the  most  solemn  instruments 
such  as  charters,  grants,  and  other  public  documents , 
as  likewise  all  sorts  of  private  conveyances.  (/) 

325.  Artificial  presumptions  of  this  kind  require 

(/)  Tnfrh,  sect.  2,  sub-sect.  5. 

premises  are  inductive  processes ;  and  hence  are  processes  of 
fact  as  distinguished  from  law."  Wharton  on  Homicide,  §  645 


PRESUMPTIVE    EVIDENCE.  591 

to  be  made  with  caution,  and  it  must  be  acknowledged 
that  the  legitimate  limits  of  the  practice  have  often 
been  very  much  overstepped,  {g)  There  are  in  the 
books  many  cases  on  this  subject  which  can  not  now 
be  considered  as  law,  and  some  of  which  even  border 
on  the  ridiculous.  Thus,  in  an  action  on  the  game/ 
laws,  it  was  suggested  that  the  gun  with  which  the  de- 
fendant fired  was  not  charged  with  shot,  but  that  the 
bird  might  have  died  in  consequence  of  the  fright ; 
and  the  jury  having  given  a  verdict  for  the  defendant 
the  court  refused  a  new  trial.  (Ji)  In  another  case, 
Lord  Ellenborough  is  reported  to  have  cited  with  ap- 
probation an  expression  of  Lord  Kenyon,  that,  in 
favor  of  modern  enjoyment,  where  no  documentary 
evidence  existed,  he  would  presume  two  hundred  con- 
veyances    if    necessary.  (7) 2      So,   in    Wilkinson    v. 

(g)  See  Doe  d.  Fenwick  v.  Reed,  5  East,  132  ;    Gibson  v.  Clark,  1  Jac.  & 

B.  &  A.  232,  236-7,  per  Abbott,  C.  J.  ;  W.  159,  161,  note  (a). 

Harmood  v.  Oglander,  8  Ves.  106,  130,  (/?)  Cited  by  Lord  Kenyon  in  Wil- 

note  (a),  per  Lord  Eldon,  C.  ;  Day  v.  kinson  v.  Payne,  4  T.  R.  46S,  469. 

Williams,  2  C.  &  J.  460,  461,  per  Bay-  (z)  Countess   of   Dartmouth   v.  Ro- 

lcy,   B. ;    Doe  d.  Shewen  v.  Wroot,  5  berts,  16  East,  334,  339. 

1  In  the  United  States  deeds  have  been  repeatedly  pre- 
sumed. Twenty  years'  adverse  possession  warrants  a  pre- 
sumption that  the  possessor  had  a  deed  of  the  property, 
and  that  all  acts,  necessary  to  give  the  deed  effect,  were  done. 
Brattle  Square  Church  v.  Billiard,  2  Mete.  (Mass.)  363  ;  Valen- 
tine v.  Piper,  22  Pick.  (Mass.)  85;  Melvin  v.  Locks  &  Canals 
17  Id.  255  ;  White  v.  Loring,  24  Id.  319;  Ryder  v.  Hathaway 
21  Id.  298. 

So  a  possession  of  thirty  years  is  sufficient  to  authorize  a 
jury  in  presuming  a  deed.  M'Nair  y.  Hunt,  5  Mo.  300.  After 
a  separate  possession  of  more  than  thirty  years,  a  deed  of  par- 
tition will  be  presumed.  Hepburn  v.  Auld,  5  Cranch.  262. 
And  so  it  has  been  held  that  a  will  may  be  presumed  to  have 
existed,  in  order  to  confirm  the  title  of  one  holding  land  for 
many  years  under  a  deed  of  A.,  "  executor  of  "  B.,  A.  being 
the  only  heir  of  B.     Maverick  v.  Austin,  1  Bailey  (S.  C.)   59. 


592      SECONDARY    RULES     OF    EVIDENCE. 

Payne  (/)  which  was  an  action  on  a  promissory  note, 
given  to  the  plaintiff  by  the  defendant  in  considera- 
tion of  his  marrying  the  defendant's  daughter,  to  which 
the  defense  set  up  was  that  the  marriage  was  not  a 
legal  one,  as  the  parties  were  married  by  license  when 
the  plaintiff  was  under  age,  and  there  was  no  consent 
of  his  parents  or  guardians,  it  appeared  in  evidence 
that  both  his  parents  were  dead  when  the  marriage  was 
celebrated,  and  there  was  no  legal  guardian  ;  but  that 
the  plaintiffs  mother,  who  survived  the  father,  had, 
when  on  her  deathbed,  desired  a  friend  to  become 
guardian  to  her  son,  with  whose  approbation  the  mar- 
riage took  place.  It  also  appeared  that,  when  the 
plaintiff  came  of  age,  his  wife  was  lying  on  her  death- 
bed, in  extremis,  and  that  she  died  in  three  weeks 
afterwards  ;  but  that  in  her  lifetime  she  and  the  plain- 
tiff were  always  treated  by  the  defendant  and  his 
family  as  man  and  wife.  Upon  these  facts,  Grose,  J., 
left  it  to  the  jury  to  presume  a  subsequent  legal  mar- 
riage, which  they  did  accordingly,  and  found  a  verdict 
for  the  plaintiff,  and  the  court  refused  a  new  trial,  (k) 
This  case  had  been  severely  commented  on  by  Sir 
W.  D.  Evans  ;  (/)  and,  indeed,  it  is  impossible  not  to 
assent  to  the  observation  that  rulings  of  this  kind 
afford  a  temptation  to  juries  to  trifle  with  their  oath, 
by  requiring  them    to    find   as   true,  facts   which   are 

(J)  4  T.  R.  468.  spoken  of  by  Eyre,  C.  B.,  in  Gibson  v. 

(k)  These  are  not  the  only  instances  Clark,  1  Jac.  &  W.  159,  161,  note  (a), 

which  might  be  cited.     See  the  case  as  "presumption  run  mad."    See,  also, 

of  Powell  v.  Milbanke,  Cowp.  103  (n.),  Doe   d.  Bristowe   v.    Pegge,  1  T.   R. 

where  Lord  Mansfield  advised  a  jury  75S,  note  ;    and   Lade  v.  Holford,  B. 

to  presume  a  grant  from  the  crown,  on  N.  P.  110. 

the  strength  of  enjoyment  under  two  (/)  2    Ev.    Poth.    330.      See,     also, 

presentations  stolen   from  the  crown.  Gresley,    Evid.    in    Eq.     485-6,    2nd 

That  case  was  condemned   by  Lord  Ed. ;    and  per   Parke,  B.,  in  Doe  d. 

Eldon,  C,  in   Hannood  v.  Oglander,  Lewis  v.  Davies,  2  M.  &  W.  51T 
8  V&i.    106,    130,    note   (a),   and   was 


PRESUMPTIVE    EVIDENCE.  593 

probably  if  not  obviously  false,  (m)  Of  late  yeais  more 
correct  views  have  grown  up  ;  and  in  several  modern 
cases,  judges  have  refused  to  direct  certain  artificial 
presumptions  to  be  made,  (*)  When  thus  restrained 
within  their  legitimate  limits,  presumptions  of  this 
kind  are  not  without  their  use.  To  suppose  an  absur- 
dity, in  order  to  meet  the  exigency  of  a  particular  case 
must  ever  be  fraught  with  mischief;  but  it  is  evidently 
different  when,  in  conformity  to  a  settled  rule  of  prac- 
tice, juries  are  directed  to  presume  the  existence  of 
ancient  documents,  or  the  destruction  of  formal  ones ; 
or  to  make  other  presumptions  on  subjects  necessarily 
removed  from  ordinary  comprehension,  but  which  the 
rules  of  law  require  to  be  submitted  to  and  deter- 
mined by  them.1  Both  judges  and  juries  are  fre- 
quently compelled,  in  obedience  to  the  Statutes  of 
Limitations,  and  the  strict  presumptions  of  law,  to 
assume  as  true,  facts  which  in  reality  are  not  so  ;  and 
the  ends  of  justice  may  render  a  similar  course  neces- 
sary, in  the  case  of  those  mixed  presumptions  which, 
although  not  technically,  are  virtually  made  by  law. 
Some  of  the  most  important  of  these  presumptions 
have  in  modern  times  been  erected  by  the  legislature 
into  rules  of  law.  (<?) 

(m)  3    Stark.  Ev.   934,  3d  Ed.  ;  Id.  Smithies,   10   East,    409  ;    R.    v.  The 

754,  4th  Ed. ;  2  Ev.  Poth.  331.  Chapter  of  Exeter,  12  A.  &  E.  512. 

(»)  Doe  d.   Fenwick  v.  Reed,  5  B.  (o)  See    3    &    4   Will.   4,  c.  42,  s.  3  ; 

&  A.  232  ;  Doe  d.  Howson  v.  Water-  infra,  sect.  2,  sub-sect.  7  ;  2  6c  3  Will, 

ton,  3  Id.  149  ;  Doe  d.  Hammond  v.  4,  cc.  71  and  100  ;  infrh  sect.  2,  sub- 

Cooke,    6     Bingh.     174  ;     Wright    v.  sect.  5. 

1  As  to  whether  the  presumption  that  a  man  is  presumed 
innocent  of  fraud  until  proved  guilty,  is  sufficient  to  rebut  the 
presumption  of  the  execution  of  a  fraudulent  deed,  raised  by 
the  proof  of  the  handwriting  of  an  attesting  witness,  Qita>.re. 
Rogers  v.  Shortis,  10  Grant  (Up.  Can.),  243  ;  and  see  Eades  v. 
Maxwell,  17  U.  C.  Q.  B.  173;  Burrill  on  Circumstantial  Evi- 
dence, §  50. 
38 


504     SECONDARY    RULES    OF    EVIDENCE. 

326.  The  terms  in  which  presumptions  of  fact  and 
mixed  presumptions,  should  be  brought  under  the  con- 
sideration of  juries  by  the  court,  depend  on  their  weight, 
either  natural  or  technical.     When  the  presumption  is 
one  which  the  policy  of  law  and  the  ends  of  justice  re- 
quire to  be  made,  such  as  the  existence  of  moduses,  and 
other  immemorial  rights,  from  uninterrupted  modern 
user,  the  jury  should  be  told  that  they  ought  to  make 
the  presumption,  unless  evidence  is  given  to  the  con- 
trary ; — it  should  not  be  left  to  them  as  a  matter  for 
their  discretion,  (p)    And  the  same  rule  seems  to  apply, 
where  the  presumption  is  one  of  much  natural  weight 
and  of  frequent  occurrence,  as  where  larceny  is  inferred 
from  the  recent  possession  of  stolen  property,  (q)     In 
the  case  of  presumptions  of  a  less  stringent  nature, 
however,  such  a  direction   would  be  improper ;  and 
perhaps  the  best  general  rule  is,  that  the  jury  should 
be  advised  or  recommended  to  make  the  presumption, 
(r)     To  lay  down  rules  for  all  cases  would  of  course 
be  impossible ;  but  the  language  of  the  courts,  expressed 
in  decided  cases  in  regard  to  particular  presumptions, 
may  in  general  be  expected  to  exercise  considerable 
influence  in  the  determination  of  future  cases  in  which 
the  like  presumptions  may  arise,  (s) 

327.  It  has  been  already  stated,  (t)  as  a  character- 
istic distinction  between  presumptions  of  law  and  pre- 
sumptions of  fact,  either  simple  or  mixed,  that  when 
the  former  are  disregarded  by  a  jury,  a  new  trial  is 
granted  as  matter  of  right,  but   that  the  disregard  of 

(/)  Shephard   v.     Payne    (in   Cam.  however,  per  Lord  Denman  in  Brune 

Scac.),  16  C.  B.,  N.  S.  132,  135  ;  Law-  v.  Thompson,  4  Q.  B.  543,  552. 

rence    v.    Hitch   (in  Cam.    Scac),    L.  (g)  See  supra,  %  2,21,,  n.  (e). 

Rep.,  3  Q-  B.  521  ;  Jenkins  v.  Harvey,  (r)  See  R.  v.  Joliffe,  3  B.  &  C.  54. 

t    C.  M.  &  R.  877  ;    Pilots   of  New-  (s)  Phill.  &  Am.  Ev.  461  ;    I   PhilL 

castle  v.  Bradley,  2  E.  &  B.  431.     See,  Ev.  470,  10th  Ed. 

(/)  Supra,  §  304. 


PRESUMPTIVE    EVIDENCE.  595 

any  of  the  latter,  however  strong  and  obvious,  is  only 
ground  for  a  new  trial  at  the  discretion  of  the  ^.ourt. 
(«)  Now,  although  questions  of  fact  are  the  peculiar 
province  of  a  jury,  the  courts,  by  virtue  of  their  general 
controlling  power  over  everything  that  relates  to  the 
administration  of  justice,  (y)  will  usually  grant  a  new 
trial  when  an  important  presumption  of  fact,  or  an  im- 
portant mixed  presumption,  has  been  disregarded  by  a 
jury.  *  But  new  trials  will  not  always  be  granted  when 
successive  juries  disregard  such  a  presumption ;  and 
the  interference  of  the  court  in  this  respect  depends 
very  much  on  circumstances.  As  a  general  rule  it  may 
be  stated,  that  not  more  than  one  or  two  new  trials 
would  be  granted,  (w)  There  are,  however,  some 
mixed  presumptions  which  the  policy  of  the  law,  con- 
venience, and  justice,  so  strongly  require  to  be  made, 
that  the  courts  will  go  further  in  order  to  uphold  them. 

(«)  Fhill.  &  Am.  Ev.  459  ;  1  Phill.  (?t>)  Phill.  &  Am.  Ev.  459-460.     See 

Ev.  467.  10th  Ed.  ;  Tindal  v.  Brown,  Foster  v.   Steele,  3   Bing.   N.  C.  892  ; 

I  T.  R.  167.  Swinnerton   v.  The  Marquis    of  Staf- 

(v)  Goodwin    v.    Gibbons,    4    Burr.  ford,  3  Taunt.  232  ;  Foster  v.  Allenby, 

210S  ;    Burton  v.  Thompson,  2  Burr.  5     Dowl.   619  ;    Davies   v.    Roper,    2 

664.  Jurist,  N.  S.  167. 

1  In  an  action  on  a  promissory  note  it  is  error  for  which 
the  judgment  will  be  reversed  and  a  new  trial  will  be  granted 
to  refuse  to  charge  in  writing,  upon  request  of  the  defendants, 
that  the  note  being  payable  to  a  third  person,  the  law  pre- 
sumes him  to  be  the  owner  until  the  evidence  shows  that  his 
title  to  the  note  has  terminated.     Turnley  v.   Black,  44  Ala. 

159- 

And  so  on  the  trial  of  an  action  for  malicious  prosecution  the 

defendant's  counsel  having  argued  that  the  plaintiff's  char- 
acter was  bad, — Held,  to  be  error  for  the  court  to  refuse  to 
instruct  the  jury  that  the  law  presumed  that  his  character 
was  good  in  the  absence  of  evidence  to  the  contrary.  Gog- 
gans  v.  Monroe,  31   Ga  331. 

Where  a  party  does  not  attempt  to  remove  presumptions 
against  his  character,  it  will  be  inferred  that  it  can  not  be  done. 
Parks  v.  Richardson,  4  B,  Mon.  (Ky.)  276. 


b9$     SECONDARY    RULES     OF    EVIDENCE. 

The  principal  among  these,  are  the  existence  of  prescrip- 
tive rights  and  grants,  from  long  continued  possession, 
(x)  &c.  But  it  may  well  be  doubted  whether,  even  in 
such  cases,  the  rule  is,  as  has  been  suggested,  (jj/)  viz., 
that  if  the  jury  disregard  the  recommendation  of  the 
judge, — that  such  evidence  warrants  the  presumption, 
— the  court  will  direct  a  new  trial,  toties  quoties.  This 
would  be  very  like  setting  aside  trial  by  jury  ;  and 
where  several  sets  of  men  find  on  their  oaths  in  a  par- 
ticular way,  it  would  be  more  reasonable  to  presume 
that  they  did  not  do  so  without  good  grounds. ' 

SUB-SECTION    III. 

CONFLICTING    PRESUMPTIONS. 

PARAGRAPH 

Maxim  "  Stabitur  prsesumptioni  donee  probetur  in  contrarium  "    .         .  32S 

Conflicting  presumptions 329 

Rules  respecting      .         .  ........  330 

Rule  I.   Special  presumptions  take  precedence  of  general    .  331 
Rule  2.  Presumptions  derived  from  the   course  of  nature   are 

stronger  than  casual  presumptions  ....  332 

Rule  3.  Presumptions  are  favored  which  give  validity  to  acts  .  333 

Rule  4.  The  presumption  of  innocence  is  favored  in  law  .         .  334 

328.  It  is  obvious  from  what  has  been  already 
said,  that  the  maxim,  "  Stabitur  praesumptioni  donee 
probetur  in  contrarium,"  (z)  must  be  understood  with 

(x)  Jenkins    v.    Harvey,  1    C.  M.   &  149. 

R.  877,  895,  per  Alderson,  B.  ;    Gib-  (z)  Co.  Litt.  373b  ;  2  Co.  48a;  2  Cc-. 

son  v.  Muskett.  3  Scott,  N.  R.  419.  73b  ;  Hob   297  ;    Jenk.   Cent,  i,  cas. 

(jr)  Gale    on    Easements,    4th    Ed.  62  ;  3  Bl.  C.  371. 

1  The  law  presumes  a  verdict  to  be  correct.  Hence,  on  a 
motion  for  a  new  trial,  the  party  must  set  forth  the  grounds 
upon  which  he  intends  to  rely,  or  the  motion  will  be  considered 
as  waived.  Hilliard  on  New  Trials,  ch.  2,  §  2,  citing  Wing  v 
Owen,  9  Cal.  247  ;  Collier  v.  State,  20  Ark.  36  ;  Hamilton  v. 
Congers,  25  Geo.  158.  So  it  will  be  presumed  that  inferior 
courts  have  not  erred,  unless  the  contrary  be  clearly  shown. 
State  v.  Farish,  23  Miss.  (1  Cush.)  483. 


PRESUMPTIVE    EVIDENCE.  597 

considerable  limitation.  *  That  maxim  is  obviously  in- 
applicable, either  to  irrebuttable  presumptions  (prae- 
sumptiones  juris  et  de  jure),  whose  very  nature  is  to 
exclude  all  contrary  proof,  or  to  those  presumptions  of 
fact  which  have  been  denominated  slight  (praesump- 
tiones  leviores).  And  it  is,  therefore,  necessarily 
restricted  to  such  presumptions  of  law  or  fact,  mixed 
presumptions,  and  pieces  or  masses  of  presumptive 
evidence,  as  throw  the  burden  of  proof  on  the  parties 
against  whom  they  militate. 

329.  Rebuttable  presumptions  of  any  kind  may 
be  encountered  by  presumptive,  as  well  as  by  direct 
evidence ;  (a)  and  the  court  may  even  take  judicial 
notice  of  a  fact — such,  for  example,  as  the  increase  in 
the  value  of  money — for  the  purpose  of  rebutting  a 
presumption,  which  would  otherwise  have  arisen  from 
uninterrupted  modern  usage.  (J?)  Again,  it  not  un- 
frequently  happens  that  the  same  facts  may,  when 
considered  in  different  points  of  view,  form  the  bases 
of  opposite  inferences  ;  and  in  either  of  these  cases  it 
becomes  necessary  to  determine  the  relative  weight 
due  to  the  conflicting  presumptions.  The  relative 
weight  of  conflicting  presumptions  of  law  is,  of  course, 
to  be  determined  by  the  court  or  judge, — who  should 
also  direct  the  attention  of  the  jury  to  the  burden  of 
proof  as  affected  by  the  pleadings,  and  to  the  evidence 
in  each  case.  And  although  the  decision  of  questions 
of  fact  constitutes  the  peculiar  province  of  the  jury, 
they  ought,  especially  in  civil   cases,  to  be  guided    by 

(a)  Brady  v.  Cubitt,  i  Dougl.  31,  39,  267  ;  Simpson  v.   Dendy,  8  C.  B.,  N, 

per    Lord   Mansfield  ;  Jayne  v.  Price,  S.  433  ;     Menochius   de   Praes.  lib.    1, 

5  Taunt.  326,  328,  per  Heath,  J.  ;  R.  qusest,  29,  30,  31  ;  Mascardus  de  Prob. 
v.  The  Inhabitants  of  Harborne,  2  A.  Concl.  123 1. 

6  E.  540;    Rickards  v.    Mumford,  2  (3)  Bryant  v.  Foot,  L.  Rep.  2  Q.  B. 
Pliillim.  24,  25,  per  Sir  John  Nicholl  ;       161  ;  S.  C.  (in  Cam.  Scac.),  3  Id.  49" 
Due  d.  Harris Jti  v.  Hampson,   4  C.  B. 


598     SECONDARY    RULES     OF    EVIDENCE. 

those  rules  regulating  the  burden  of  proof  and  the 
weight  of  conflicting  presumptions,  which  are  recog- 
nized by  law,  and  have  their  origin  in  natural  equity 
and  convenience.  It  must  not,  however,  be  supposed 
that  every  praesumptio  juris  is,  ex  vi  termini,  stronger 
than  every  praesumptio  hominis,  or  praesumptio  mixta  ; 
on  the  contrary,  which  of  any  two  presumptions  ought 
to  take  precedence,  must  be  determined  by  the  nature 
of  each.  The  presumption  of  innocence,  for  instance, 
is  praesumptio  juris  ;  but  every  day's  practice  shows 
that  it  may  be  successfully  encountered  by  the  presump- 
tion of  guilt  arising  from  the  recent  possession  of 
stolen  property  (c) — which  is  at  most  only  praesump- 
tio  mixta. 

330.  The  subject  of  conflicting  presumptions  seems 
almost  to  have  escaped  the  notice  of  the  writers  on 
English  law  ;  but  several  rules  respecting  it  have  been 
laid  down  by  civilians.  Some  of  these  are  perhaps 
questionable  ;  (V)  but  the  following  appear  sound  in 
principle  ;  and,  provided  they  are  understood  as  being 
merely  rules  for  general  guidance,  and  not  rules  of 
universal  obligation,  thay  are  likely  to  be  serviceable  in 
practice. 

(c)  Saprh,  bk.  2,  pt.  2.  sessione   est   potentior   ilia,   quae  est, 

(d)  In  addition  to  those  mentioned  quod  quaelibet  res  prsesumatur  libera. 
in  this  chapter,  Menochius  gives  the  6.  Praesumptio  est  potentior  et  firmior 
following  (De  Praesumptionibus,  lib.  I,  quae  est  negativa,  ilia  quae  est  affirma- 
quaest.  29.  See  also  Id.,  De  Arbi-  tiva.  7.  Prsesumptio  ilia  judicatur  po- 
trariis  Judicum,  lib.  2,  casu$  472)  : —  tentior  et  firmior  quae  est  fundata  in 
"1.  Prsesumptio  quse  a  substantia  pro-  ratione  naturali,  ilia  qua;  est  fundata 
venit,  dicitur  potentior  ilia  quae  de-  in  ratione  civili.  8.  Firmior  et  vali- 
scendit  a  solemnitate.  2.  Prsesumptio  dior  existimatur  ilia  praesumptio,  qua 
judicatur  potentior  quae  est  benignior.  absurda  et  insequalia  evitantur.  9. 
3.  Praesumptio  judicatur  firmior  et  po-  Praesumptio  quae  ducitur  a  facto,  est 
tentior,  quae  juri  communi  inhaeret,  et  firmior  et  potentior  ea  quae  sumitur 
iha  debilior  quae  juri  speciali.  4.  Piae-  a  non  facto.  10.  Praesumptio  quae 
sumptio  est  validfor  et  potentior,  quae  favet  animae,  sicque  saluti  aeternae,  po- 
verisimilitudini  magis  convenit.  5.  tentior  et  firmior  est  ilia  qua.  dicimus 
Praesumptio  quae  descendit  a  quasi  pos-  delictum  non  praesumi." 


PRESUMPTIVE    EVIDENCE.  599 

331.  1.  Special  presumptions  take  precedence  of 
general,  (e)  This  is  the  chief  rule  ;  and  it  seems  a 
branch  of  the  more  general  principle,  "  It  toto  jure 
generi  per  speciem  derogatur."  (/)  It  rests  on  the 
obvious  principle  that,  as  all  general  inferences 
(except,  of  course,  such  as  are  juris  et  de  jure)  are  re- 
buttable by  direct  proof,  they  will  naturally  be  affected 
by  that  which  comes  nearest  to  it ;  namely,  specific 
proximate  facts  or  circumstances,  which  give  rise  to 
special  inferences,  negativing  the  applicability  of  the 
general  presumption  to  the  particular  case.  Thus, 
although  the  owner  in  fee  of  land  is  presumed  to  be 
entitled  to  the  minerals  found  under  it,  (g)  this  pre- 
sumption may  be  rebutted  by  that  arising  from  non- 
enjoyment  by  him,  and  the  use  of  those  minerals  by 
others.  (Ji)  So,  although  the  possession  of  land  and 
the  perception  of  rent  is  prima  facie  evidence  of  a 
seisin  in  fee,  still,  where  the  defendant,  in  a  writ  of 
right  claimed  under  a  remote  ancestor,  it  was  held  that 
presumption  was  successfully  encountered  by  proof, 
that  the  defendant  and  his  father,  through  whom  his 
title  was  traced,  had  for  a  long  time  allowed  othet 
parties  to  keep  possession  of  the  land,  when  they 
themselves  lived  in  the  neighborhood  and  must  have 
been  aware  of  it.  (z* )  The  flowing  of  the  tide  in  a 
river  is  presumptive  evidence  of  its  being  navig- 
able;  (/)  but  the  presumption  may  be  rebutted  by 
proof    of    the    narrowness    of   the    stream,    or     the 

(e)  Menochius  de  PrjesumptJonibus,  (/)  Dig  lib.  50,  tit.  17,  1.  80.     See 

lib.  1,  quoest.   29,  nn.   7  6c  is ;    Id.   De  also  Sext.   Decretal,  lib.  5,   tit.  12,  de 

Arbitrariis  Judicum,  lib.  2,  casus  472,  Reg.  Juris,  Reg.  34. 
n.    14,   et  seq.;   Huberus,  Prael.  Juris  (g)  Rowbotham  v.  Wilson,  8  H.  L. 

Civilis,  lib.  22,  tit.  3,  n.  17  ;  Id.,  Posi-  C.  348. 

tiones  Juris  sec.  Pand.  lib.  22,  tit  3,  n.  (/z)  Rowe  v.  Brenton,  8  B.  &  C.  737 

24  ;       Mascardus     de     Probationibus,  Rowe  v.  Grenfel,  R.  &  M.  396. 
Concl.  1231,  nn.  6  &  7  ;  2  Ev.  Pothier,  (/)  Jayne  v.  Price,  5  Taunt.  326, 

332.  (J)  Miles  v.  Rose,  5  Taunt.  705.. 


600     SECONDARY    RULES    OF    EVIDENCE. 

shallowness  of  its  channel,  or  of  acts  of  owner- 
ship by  private  individuals,  inconsistent  with  a 
right  of  public  navigation,  (k)  The  presumption  of 
innocence  is  a  very  general,  and  rather  favored  pre- 
sumption ;  but  guilt,  as  we  see  every  day,  may  be 
proved  by  presumptive  evidence.  Where  the  publi- 
cation of  a  libel  has  been  proved,  malice  will  be  pre- 
sumed, (/) 1  as  it  will  also  on  a  charge  of  murder,  from 
the  fact  of  slaying,  (m)  So,  if  a  libel  be  sold  by  a 
servant  in  the  discharge  of  his  ordinary  duty,  this  is 
presumptive,  and — at  least  since  the  6  &  7  Vict.  s.  7 — 
only  presumptive  evidence  of  publication  by  the 
master.  («)  So  it  is  said  to  have  been  a  rule  in  the 
ecclesiastical  courts,  that  where  the  existence  of  an 
adulterous  intercourse  had  been  proved,  its  contin- 
uance would  be  presumed  so  long  as  the  parties  lived 
under  the  same  roof.  (0)  So,  although  a  fine,  without 
any  deed  executed  to  declare  the  uses,  was  presumed 
to  have  been  levied  to  secure  the  title  of  the  conusor, 
evidence  was  receivable  to  rebut  this  presumption,  and 
to  show  that  it  was  levied  to  vest  the  land  in  the 
conusee.  (/)  But  it  is  not  every  circumstance  or 
special  inference  that  will  suffice  to  set  aside  a  general 
presumption,  either  of  law  or  fact. 

332.   II.  Presumptions  derived  from  the  course  of 
nature    are    stronger  than    casual    presumptions,  (q) 

{k)  Id. ;    R.  v.  Montague,  4  B.  &  C.  (p)  Roe  v.   Popham,  1  Dougl.   25  ; 

598  ;  Mayor  of  Lynn  v.  Turner,  Cowp.  Peake's  Ev.  ng,  5th  Ed. 
86.  (q)  Menochius     de     Prses.    lib.     1, 

(/)  Haire  v.  Wilson,  9  B.  &  C.  643.  qucest.    29,    n.  9  ;    Id.    de   Arbitrariis 

(m)  Foster's  C.  L.  255,  290  ;  I  Hale,  Judicum,  lib.  2,  casus  472,  n.  19  ;  Mas- 

P.  C.  455  ;  1  East,  P.  C.  340.  cardus   de    Probat.    quaest.    10,  n.   18 

(«)  R.  v.  Walter,  3   Esp.  21  ;  R.  v.  and    Concl.   1231,  nn.   17  &  18  ;    Hu- 

Gutch,  1  Mood.  &  M.  437.  bents,  Prael.  Jur.  Civ.  lib.  22,  tit.  3,  n 

ip)  Turton   v.    Turtcn,  3   Hagg.  N.  17;  Id.  Positiones  Juris  sec.  Pand.  lib 

C.  350.  22,  tit.  3,  n.  24. 

1  Morgan's  Laws  of  Literature,  vol.  1,  p.  139V 


PRESUMPTIVE    EVIDENCE.  601 

This  is  a  very  important  rule,  derived  from  the  con- 
stancy and  uniformity  observable  in  the  works  of 
nature  which  render  it  probable  that  human  testi- 
monies, or  particular  circumstances  which  point  to  a 
conclusion  at  variance  with  her  laws,  are,  in  the  parti- 
cular instance,  fallacious.  "  Naturae  vis  maxima."  (r) 
Thus,  on  an  indictment  for  stealing  a  log  of  timber,  it 
would  probably  be  considered  a  sufficient  answer  to 
any  chain  of  presumptive  evidence,  or  even  to  the 
positive  testimony  of  an  alleged  eye-witness,  to  show 
that  the  log  in  question  was  so  large  and  heavy  that 
ten  of  the  strongest  men  could  not  move  it.  (s)  A 
charge  of  robbery  brought  by  a  strong  person  against 
a  girl  or  a  child,  or  of  rape  brought  by  an  athletic 
female  against  an  old  or  sickly  man,  would  be  refuted 
in  this  way.  So,  although  this  likewise  rests  in  some 
degree  on  principles  of  public  policy,  (/)  sanity  is 
always  presumed,  even  when  the  accused  is  on  his 
trial  on  a  capital  charge,  (zi)  Under  this  head  come 
also  those  instances,  in  which  presumptions  drawn 
from  the  natural  feelings  of  the  human  heart  have 
been  found  to  prevail  over  others,  and  among  the 
rest,  over  that  arising  from  possession,  as  in  the  judg- 
ment of  Solomon,  already  mentioned,  (v)  So,  where 
a  parent  advances  money  to  a  child,  it  is  presumed  to 
be  by  way  of  gift  and  not  by  way  of  loan  ;  (x)  and 
the  harsh  doctrine  of  collateral  warranty  rested,  in 
some  degree,  on  a  strained  application  of  this  prin- 
ciple, (jj/) 

(;-)  2  Inst.  564  ;  Plowd.  309.  &  K.  185. 

(j)  Menochius    de    Arbitrariis    Jud.  (v)  I  Kings,  iii.  16  ;  sitprh,  sub-sect. 2. 

lib.  2,  casus  472,  n.  21.  (x)  Dig.  lib.  10,   tit.  2,  1.  50;  Voet. 

(/)  Infra,  sect.  3,  sub-sect.  I.  ad  Pand.  lib.  22,  tit.  3,  n.  15,  vers.  fin. , 

(u)  Answer   of    the   Judges   to    the  per  Bayley,  }.,  in  Hick  v.  Keats,  4  B. 

House  of  Lords,  8  Scott,  N.  R.  595  ;  &  C.  69,  71. 
1  Car.  &  K.  131  ;    R.  v.  Stokes,  3  Car.  (;-)  Co.  Liu.  37™. 


602      SECONDARY    RULES    OF    EVIDENCE. 

333.  III.  Presumptions  are  favored  which  give 
validity  to  acts,  (z)  The  maxim,  "  Omnia  praesumun- 
tur  rite  esse  acta,"  will  be  considered  in  its  place ;  (a) 
and  it  will  only  be  necessary,  at  present,  to  advert  to 
some  cases,  in  which  this  presumption  has  been  held 
to  override  others  also  of  a  favored  kind,  as  for  in- 
stance that  of  innocence.  On  an  indictment  for  the 
murder  of  a  constable,  the  fact  of  the  deceased  having 
publicly  acted  as  constable,  is  sufficient  prima  facie 
proof  of  his  having  been  such,  without  producing  his 
appointment.  (6)  And  on  an  indictment  for  perjury, 
in  taking  a  false  oath  before  a  surrogate,  it  is  suffi- 
cient, prima  facie,  to  prove  that  the  party  administer- 
ing the  oath  acted  as  surrogate.  (V) 

334.  IV.  The  presumption  of  innocence  is  fa- 
vored in  law.  (d)  This  is  a  well-known  rule,  and  runs 
through    the   whole   criminal    law ; '    but   it   likewise 

(2)  Hubems,  Pnel.  Jur.  Civ.  lib.  22,  (c)  R.  v.  Verelst,  3  Camp.  432. 

tit.  3,  n.  17;  Id.   Positiones  Jur.   sec.  (,/)  Huberus,  Prael.  Jur.  Civ.  lib.  22, 

Panel,  lib.  22,  tit.  3,11.  24  ;  Menochius  tit.  3,  n.  17  ;  Id.  Positiones  Juris  sec. 

de   Praes.  lib.  1,  qucest.   29,   n.  3  ;    Id.  Pand.  lib.  22,  tit,  3,  n.  24;  Menochius 

de  Arbitrar.  Jud.  lib.  2.  cas.  472,  11.  2  ;  de  Praes.  lib.  1,  qucest.   29,  n.  n  ;    Id. 

Mascardus  de  Prob.  Concl.   1231,  nn.  de.  Arbitr.  Jud.  lib.  2.  cas,  472,  n.  25  ■ 

20  &  23-  Mascard.  de  Prob.  Concl.  1231,  nn.  9, 

(a)  Infrh,  sect.  2,  sub-sect.  4.  30,    &c.  ;    R.    v.  The   Inhabitants  of 

(b)  R.    v.    Gordon,  1    Leach.    C.  L.  Twyning,  2   P.  &  Aid.   386  ;    Middle- 
5I5-  ton  v.  Parned,  4  Exch.  241. 

1  It  is  settled  in  the  United  States,  for  instance,  that  the 
presumption  of  innocence  will  override  all  other  presump- 
tions, even  the  presumption  of  chastity  in  a  female  West  v. 
State,  1  Wis.  209.  And  so,  too,  the  legal  presumption  that  a 
given  state  of  facts  continues  until  the  contrary  is  shown,  is 
controlled  by  the  presumption  in  favor  of  innocence.  Klein 
v.  Landman,  29  Mo.  259. 

And  so  far  will  this  override  all  other  presumptions,  that 
in  an  indictment  for  seduction,  the  law  does  not  presume  the 
previous  chastity  of  the  female,  such  a  presumption  being  in- 
consistent with  that  of  the  prisoner's  innocence,  but  such 
chastity  must  be  proved  by  the  government,  it  being  essential 
to  the  constitution  of  the  offense  charged.     West  v.   State,  1 


PRESUMPTIVE    EVIDENCE.  603 

holds  in  civil  proceedings.  In  R.  v.  The  Inhabitants 
of  Twyning,  (i)  which  is  certainly  one  of  the  leading 
authorities  on  the  subject  of  conflicting  presumptions, 
it  appeared  by  a  case  sent  up  from  the  sessions,  that 
about  seven  years  before  that  time,  a  female  pauper  in- 
termarried with  Richard  Winter,  with  whom  she  lived 
a  few  months,  when  he  enlisted  as  a  soldier,  went 
abroad  on  foreign  service,  and  was  never  afterwards 
heard  of.  In  little  more  than  twelve  months  after  his 
departure,  she  married  Francis  Burns.  On  this  evi- 
dence the  Court  of  Queen's  Bench,  consisting  of  Bay- 
ley  and  Best,  JJ.,  held  that  the  issue  of  the  second 
marriage  ought  to  be  presumed  legtimate ;  and  the 
former  judge  said,  (/)  "  This  is  a  case  of  conflicting 
presumptions,  and  the  question  is,  which  is  to  prevail 
The  law  presumes  the  continuation  of  life,  but  it  also 
presumes  against  the  commission  of  crimes,  and  that 
even  in  civil  cases  until  the  contrary  be  proved.  .  . 
The  facts  of  this  are,  that  there  is  a  marriage  of  the 
pauper  with  Francis  Burns,  which  is  prima  facie  valid  ; 
but  the  year  before  that  took  place,  she  was  the  wife 
of  Richard  Winter,  and  if  he  was  alive  at  the  time  of 
the  second  marriage,  it  was  illegal,  and  she  was  guilty 
of  bigamy.  But  are  we  to  presume  that  Winter  was 
then    alive  ?     If  the    pauper   had    been    indicted    for 

(<?)  2  B.  &  Aid.  386.  (/)  2  B.  &  Aid.  388. 

Wis.  209.  When  the  presumption  of  a  continuation  of  life 
conflicts  with  that  of  another  person's  innocence  of  a  criminal 
offense  the  latter  will  prevail.  Sharp  v.  Johnson,  22  Ark.  79. 
The  presumption  in  favor  of  innocence  holds  in  all  civil  suits 
in  which  it  comes  collaterally  in  question.  Case  v.  Case,  17 
Cal.  598. 

So  the  legal  presumption  of  the  continuance  of  life  is  no* 
so  strong  as  the  legal  presumption  of  innocence,  and  where, 
the  two  conflict,  the  former  must  yield  to  the  latter.  Lock- 
hart  v.  White,  18  Tex.  102. 


6o4      SECONDARY    RULES     OF    EVIDENCE. 

bigamy,  it  would  clearly  not    be    sufficient     In    that 
case  Winter   must   have  been   proved  to   have   been 
alive  at  the  time  of  the  second  marriage.     It  is  con- 
tended that  his  death   ought  to  have  been   proved 
but  the  answer  is,  that  the  presumption  of  law  is,  that 
he  was  not  alive  when  the  consequence  of  his  being  so 
is,  that  another  person  has  committed  a  criminal  act 
I  think,  therefore,  that  the  sessions  decided  right,  in 
holding  the  second  marriage  to  have  been  valid,  un- 
less proof  had  been  given  that  the  first  husband  was 
alive  at  the  time."     This  language  goes  further  than 
was  necessary  for  the  decisions  of  the  actual  case  be- 
fore the  court  ;  and  it  certainly  can  not  be  supported 
to  its  full  extent,  as  appears  from  the  subsequent  case 
of  R.  v.  The  Inhabitants  of  Harborne.  (g)     There,  in 
order  to  support  an  order  for  the  removal  of  a  female 
pauper,  of  the  name  of  Ann  Smith,  it  was  proved  that 
on  the  nth  April,  1831,  she  had  been  married  to  one 
Henry  Smith,  who  had  since  deserted  her;  in  answer 
to  which  it  was  shown  that   he  had   been   previously 
married,  October,  1821,  to  another  female  with  whom 
he  lived  until  1825,  when  he  left  her  ;  that  several  let- 
ters had  since  been  received  from  her  from  Van  Die- 
men's  Land,  one  of  which  was  produced,  bearing  date 
twenty-five  days  previous  to  the  second  marriage.     The 
sessions,  on  this  evidence,  presumed  the  first  wife  to 
be  living  at  the  time    of   the  second   marriage,  and 
quashed  the  order.     On  the  case  coming  on  for  argu- 
ment before  the  Court  of  Queen's  Bench,  several  cases 
were  cited,  and  R.  v.  Tvvyning  was  relied  on  as  an  au- 
thority, to  show  that  the  party  asserting  the  life  of  the 
first  wife,  and  thereby  the  criminality  of  the  husband, 
was  bound  to  show  the  continuance  of  the  life  up  to 
the  very  moment  of  the   second  marriage  ;  and   that 

(g)  2  A.  &  E.  540. 


PRESUMPTIVE    EVIDENCE.  605 

the  court  was  precluded  from  inferring  the  contin-, 
uance  of  the  life  until  the  marriage  by  the  strict  rule  of 
^gal  presumption  laid  down  in  that  case.  The  court, 
however,  consisting  of  Lord  Denman,  C.  J.,  and 
Littledale  and  Williams,  JJ.,  held  that  the  conclusion 
drawn  by  the  sessions  from  the  evidence  was  proper. 
Lord  Denman,  in  the  course  of  his  judgment,  expressed 
himself  as  follows:  "The  only  circumstance  raising 
any  doubt  in  my  mind,  in  the  doctrine  laid  down  by 
Bayley,  J.,  in  R.  v.  Twyning.  But  in  that  case,  the 
sessions  found  that  the  plaintiff  was  dead ;  and  this 
court  merely  decided,  that  the  case  raised  no  presump- 
tion upon  which  the  finding  of  the  sessions  could  be 
disturbed.  The  two  learned  judges,  Bayley,  J.,  and 
Best,  J.,  certainly  appear  to  have  decided  the  case 
upon  more  general  grounds ;  the  principle,  however, 
on  which  they  seem  to  have  proceeded,  was  not  neces- 
sary to  that  decision.  I  must  take  this  opportunity 
of  saying,  that  nothing  can  be  more  absurd  than  the 
notion,  that  there  is  to  be  any  rigid  presumption  of 
law  on  such  questions  of  fact,  without  reference  to  ac- 
companying circumstances,  such,  for  instance,  as  the 
age  or  health  of  the  party.  There  can  be  no  such 
strict  presumption  of  law.  .  .  I  am  aware  that  Bay- 
ley,  J.,  founds  his  decision  on  the  ground  of  contrary 
presumptions  ;  but  I  think  that  the  only  question  in 
such  cases  are,  what  evidence  is  admissible,  and  what 
inference  may  fairly  be  drawn  from  it.  It  may  be 
said,  suppose  a  party  were  shown  to  be  alive  within  a 
few  hours  of  the  second  marriage,  is  there  no  presump- 
tion then  ?  The  presumption  of  innocence  can  not  shut 
out  such  a  presumption  as  that  supposed.  I  think  no 
one,  under  such  circumstances,  could  presume  that  the 
party  was  not  alive  at  the  time  of  the  second  mar- 
riage."    Judgments  to  a  similar  effect  were  given   by 


co6      SECONDARY    RULES    OF    EVIDENCE. 

the  otner  members  of  the  court.  There  is  no  conflict 
whatever  between  the  decisions  in  the  cases  of  R.  v 
The  Inhabitants  of  Twyning,  and  R.  v.  The  Inhabi- 
tants of  Harborne,  nor  does  the  principle  involved  in 
either  of  them  present  any  real  difficulty.  The  pre- 
sumption of  innocence  is  a  praesumptio  juris,  and,  as 
such,  is  good  until  disproved.  R.  v.  Twyning  decides 
that  the  presumption  of  the  fact  of  the  continuance  ol 
life,  derived  from  the  first  husband's  having  been 
shown  to  be  alive  about  a  year  previous  to  the  second 
marriage,  ought  not  to  outweigh  the  former  presump- 
tion in  the  estimation  of  the  sessions  or  a  jury  ;  while 
R.  v.  Harborne  determines,  that  if  the  period  be  re- 
duced from  twelve  months  to  twenty-five  days  it  would 
be  otherwise ;  and  that  the  sessions  or  jury  might,  in 
their  discretion,  presume  the  first  husband  to  be  still 
living.  This  view  of  these  cases  is  confirmed  by  the 
judgment  of  the  House  of  Lords,  in  the  subsequent 
case  of  Lapsley  v.  Grierson.  (/*) 

(A)  i  Ho.  Lo.  Cas.  498. 


PRESUMPTIVE    EVIDENCE,  607 


SECTION  II. 

■ 

PRESUMPTIONS   OF     LAW    AND     FACT    USUALLY     MET    IN 

PRACTICE. 

335.  It  is  proposed  in  this  section  to  consider  the 
principal  presumptions  of  law  and  fact  usually  met 
with  in  practice,  and  which  will  be  treated  in  the  fol- 
lowing order : 

1.  Presumption  against  ignorance  of  the  law. 

2.  Presumptions  derived  from  the  course  of  nature. 

3.  Presumptions  against  misconduct. 

4.  Presumptions  in  favor  of  the  validity  of  acts. 

5.  Presumptions  from  possession  and  user. 

6.  Presumptions   from   the    ordinary    conduct   of 

mankind,  the  habits  of  society,  and  the  usages 
of  trade. 

7.  Presumption   of  the  continuance  of  things  in 

the  state  in  which  they  have  once  existed. 

8.  Presumptions  in  disfavor  of  a  spoliator 

9.  Presumptions  in  international  law. 

10.  Presumptions  in  maritime  law. 

1 1.  Miscellaneous  presumptions. 


6o8      SECONDARY    RULES    OF    EVIDENCE, 


SUB-SECTION  I. 

PRESUMPTION    AGAINST    IGNORANCE    OF     THE    LAW. 

PARAGRAPH 

Presumption  against  ignorance  of  the  law        ......  33° 

Generally 33° 

Courts  of  justice 337 

The  Sovereign ....  337 

336.  The  law  presumes  conclusively  against  igno- 
rance of  its  provisions.  It  is  a  presumptio  juris  et  de 
jure,  that  all  persons  subject  to  any  law  which  has 
been  duly  promulgated,  or  which  derives  its  efficacy 
from  general  or  immemorial  custom,  must,  for  the 
reasons  stated  in  the  introduction  to  this  work,  (7)  be 
supposed  to  be  acquainted  with  its  provisions,  so  far 
as  to  render  them  amenable  to  punishment  for  their 
violation,  aud  to  have  done  all  acts  with  a  knowedge 
of  their  legal  effects  and  consequences.  (/) — "  Igno- 
rantia  juris,  quod  quisque  tenetur  scire,  non  ex- 
cusat."  (k) 1 

(?)  Part.  2,  §  45.  Dougl.    471;    2  East,   472;    3    M.  &■ 

(/)  Dr.    &    Stud.    Dial.    1,    c.    26  ;  Selw.  378. 

Dial.  2,  cc.  16,  46  ;    Plowd.   342-3  ;  1  (k)  4.  Blackst.  Comm.  27. 
Co.    177b;    2  Co.    3b;    6  Co.  54a;    2 

1  But,  it  seems,  this  is  a  rebuttable  presumption.  The 
maxim,  "  ignorantia  legis  neminem  excusat,"  is  founded  upon 
the  presumption  that  every  one  competent  to  act  for  himself, 
knows  the  law,  but  the  presumption  that  he  knows  it  is  not 
conclusive,  and  may  be  rebutted.  So  when  a  plaintiff  alleges 
in  his  bill,  that  he  was  ignorant  of  the  law,  and  the  defendant 
demurs,  it  seems  that  the  latter  can  not  take  advantage  of  the 
maxim.  Hart  v.  Roper,  6  Ired.  (N.  C.)  Eq.  349  ;  and  see  But- 
ler v.  Livingston,  15  Ga.  565,  which  holds  that  until  the  con- 
trary appears,  every  man  is  presumed  to  be  cognizant  of  the 
law,  and  of  his  legal  rights  (as  to  which,  see  also  Calais,  &c. 
Co.    v.   Van    Pelt,   2   Black,    372).     The   terms  of  a  supreme 


PRESUMPTIVE    EVIDENCE.  609 

337.  Courts  of  justice  are  also  presumed  to  know 
the  law,  but  in  a  different  sense.  Private  individuals 
are  only  taken  to  know  it  sufficiently  for  their  per- 
sonal guidance  ;  but  tribunals  are  to  be  deemed 
acquainted  with  it,  so  as  to  be  able  to  administer 
justice  when  called  on  ;  (/)  for  which  reason  it  is  not 
necessary,  in  pleading,  to  state  matter  of  law.  (111)  l 

(/)  See  the  judgment  of  Maule,  J.,      Gen.  in  Stockdale  v.  Hansard,  9   A.  & 
in  Martindale  v.  Falkner,  2  C.  B.  719-      E.  1,  131. 

20 ;    and   the   argument  of  the   Att.-  (m)  Steph.   Plead.  383,  5th   Ed. ;   I 

Chit.  Plead.  216,  6th  Ed. 

court,  which  are  fixed  by  law,  are  a  part  of  the  law  which  a 
man  is  presumed  to  know.     Gouldin  v.  Shehee,  20  Ga.  531. 

1  And  this  general  presumption  and  knowledge  will  ex- 
tend to  one's  private  concerns.  So  it  is  a  reasonable  presump- 
tion that  those  who  are  dealing  in  articles  of  commerce,  espe- 
cially those  who  purchase  by  wholesale  from  the  importers, 
are  acquainted  with  the  different  names  by  which  such  articles 
are  known  to  the  commercial  world.  Moore  v.  Des  Arts,  2 
Barb.  (N.  Y.)  Ch.  636  ;  or  when  persons  are  engaged  in  any 
particular  traffic,  that  they  are  better  acquainted  with  the 
value  of  the  commodities  in  which  they  deal  than  the  commu- 
nity generally.  Hickley  v.  Kersting,  21  111.  247.  Where  in- 
habitants of  a  township  received  and  expended  the  proceeds 
of  school  lands,  and  the  purchaser  made  valuable  improve- 
ments, the  court  presumed  that  the  inhabitants  were  cogniz- 
ant of  the  improvements,  &c,  and  held  them  bound  by  the 
sale.  State  v.  Stanley,  14  Ind.  409  ;  but  it  seems  that  there  is 
no  presumption  of  law  that  the  mayor  and  clerk  of  a  city 
know  the  contents  of  the  city  records.  Lancey  v.  Bryant,  30 
Me.  466.  The  presumption  is,  that  every  man  knows  the 
records  of  the  proceedings  of  the  court  after  he  has  been 
brought  into  it.     Watrous  v.  Rogers,  16  Tex.  410. 

But  even  courts  will  not  be  expected  to  take  judicial  no- 
tice of  private  acts  of  a  legislature.  Atchison,  &c.  R.  R.  Co.  v. 
Blackshir'e,  10  Kan.  477. 

An  act  incorporating  a  bank,  for  the  sole  benefit  of  private 
persons,  is  not  such  a  general  law  as  every  one  is  presumed  to 
know.  Special  or  private  laws  stand  in  this  respect  on  the 
same  footing  as  foreign  laws — ignorance  of  them  is  regarded 
as  ignorance  of  facts.     King  v.  Doolittle,  1  Head.  (Tenn.)  77.. 

A  private  bank  charter  is  merely  the  title  of  the  parties, 
39 


6 io     SECONDARY    RULES    OF    EVIDENCE 

The  Sovereign  is  also  presumed  to  be  acquainted 
with  the  law — "  Proesumitur  rex  habere  omnia  jura  in 
scrinio  pectoris  sui ; "  (;z)  still  it  is  competent  in  certain 
cases  to  show  that  grants  from  the  crown  have  been 
made  under  a  mistake  of  the  law.  (0) 


SUB-SECTION    II. 

PRESUMPTIONS  DERIVED  FROM  THE  COURSE  OF  NATURE. 

TARAGRAPH 

Presumptions  derived  from  the  course  of  nature  .....  338 

Physical  .........  ...         338 

Gestation  of  the  human  foetus      .......  339 

Maximum  term  of    ........         .  339 

Minimum  term  of         ...         .  ....  340 

Moral      .  ""•*..  .  341 

From  feelings  and  emotions  of  the  human  heart  .         .         .  341 

Presumption  from- transferring  money      ......  342 

Presumption    of  benefit       .  ....*..  343 

Presumption  of  willingness  to  accept  a  benefit  ....  343 

Presumption  that  a  person  intends  the  natural  consequences  of 

his  acts 344 

338.  Presumptions  derived  from  the  course  of 
nature  have  been  already  noticed  as  in  general  entitled 
to  more  weight  than  such  presumptions  as  arise 
casually.  (/) — "  Naturae  vis   maxima,"  (^) — and  they 

(«)  Co.  Litt.  99a.  (p)  Suprh,   sect.    I,    sub-sect.    3,   § 

(0)  Plowd.  502  ;    2   Blackst.   Comm.  334. 

348  ;  R.  v.  Clarke,  1  Freem.  172.     See  (q)  2  Inst.  564  ;  Plowd.  309. 
Legat's  case,  10  Co.  109. 

and  should  stand  in  this  respect  on  the  same  footing  as  titles 
to  other  private  property.     Id. 

No  person  is  bound  to  know  the  by-laws  of  an  academy,  or 
to  take  notice  of  the  existence  of  any  laws  but  those  which  are 
public.     Boyers  v.   Pratt,  1    Humph.  (Tenn.)  90. 

And  so  the  presumption  that  all  persons  know  the  law  must 
be  confined  to  presuming  that  all  persons  know  the  law  exists. 
But  not  that  they  will  be  presumed  to  know  how  the  courts 
will  construe  it,  and  whether,  if  it  be  a  statute,  it  will  or  will 
not  be  held  to  be  constitutional.     Brent  v.  State,  43  Ala.  297. 


PRESUMPTIVE    EVIDENCE.  611 

may  be  divided  into  physical  and  moral.  As 
instances  of  the  first,  the  law  notices  the  course  of  the 
heavenly  bodies,  the  changes  of  the  seasons,  and  other 
Dhysical  phenomena,  according  to  the  maxim — "  lex 
spectat  naturae  ordinem."  (r)  1  "  If,"  says  Littleton,  (s) 
'  the  tenant  holds  of  his  lord  by  a  rose,  or  by  a  bushel 
of  roses,  to  pay  at  the  feast  of  St.  John  the  Baptist ; 
if  such  tenant  dieth  in  winter,  then  the  lord  can  not 
distrain  for  his  relief,  until  the  time  that  roses,  by  the 
course  of  the  year,  may  have  their  growth."  So  the 
law  presumes  all  individuals  to  be  possessed  of  the 
usual  powers  and  faculties  of  the  human  race  ;  such 
as  common  understanding,  the  power  of  procreation 
within  the  usual  ages,  (/)  &c. ;  for  which  reason 
idiocy,  lunacy,  &c,  are  never  presumed.  And  the 
usual  incapacities  of  infancy  are  not  overlooked.  It  is 
a  praesumpio  juris  et  de  jure,  that  children  under  the 
age  of  seven  years  are  incapable  of  committing 
felony  ;  (u)  that  males  under  fourteen  are  incapable 
of  sexual  intercourse  ;  (x)  and  that  males  under  four- 
teen years,  and  females  under  twelve,  can  not  consent 
to  marriage,  (y)  So,  between  the  ages  of  seven  and 
fourteen,  an  infant  is  presumed  incapable  of  commit- 

(r)  Co.  Litt.  92a,  197b.  Douglass  cause,  given  by  him  at  page 

(s)  Sect.  129.  402.     Under  the   feudal   system,    if  a 

(t)  Huberus,  Prsel.  Jur.  Civ.  lib.  22,  guardian  in  chivalry  married  the  heir 

tit.   3,   n.  17.     In  the  case  of  gifts  in  to  a  woman  past  the  age  of  child-bear 

tail,  the  tenant  is  presumed  never  too  ing,  it  was  deemed  by  law  a  disparage- 

old  to  be  capable  of  having  issue  to  ment.       Litt.    sect.     109  ;     Co.    Litt. 

inherit  by  force  of  the  gift.      Phill.  &  80b. 

Am.  Ev.  462.      See  also  Reynolds  v.  («)  1    Hale,    P.    C    21  ;    4  Blackst. 

Reynolds,    1    Dick.   374,  and   Leng  v.  Coram,  23. 

Hodges,  1  Jac.  585.    Several  instances  (x)  1  Hale,   P.  C.  630  ;    R.  v.   Phil- 

are  given  in  Beck's  Med.  Jurisp.  148,  lips,  S   C.  &  P.  736  ;    R.  v.  Jordan,  9 

7th  Ed.,  of  females  having  borne  chil-  Id.  11S  ;    R.  v.  Bimilow,    Id.  33O  ;    R. 

dren  above  the  ages  of  fifty,  and  even  v.  Groombridge,  7  C.  &  P.  5S2. 
sixty,  years  ;    and  see    the  celebrated  (;>)  r  Blackst.  Comm,  436. 

1   See  ante,  vol.  1,  p.  408,  note  1. 


612      SECONDARY    RULES    OF    EVIDENCE, 

ing  felony;  but  this  is  only  presumptio  juris;  and  a 
malicious  discretion  in  the  accused  may  be  proved,  in 
which  case  it  is  said  "  malitia  supplet  setatem."  (z) 

339.  Under  this  head  come  the  important  and 
difficult  questions  of  the  maximum  and  minimum  term 
of  gestation  of  the  human  foetus — questions  replete 
»vith  importance  and  delicacy,  and  an  erroneous 
decision  on  which  may  not  only  compromise  the  rights 
of  individuals,  but  destroy  female  honor,  and  jeopar- 
dize the  peace  of  families.  These  are  medico-legal 
subjects,  on  which,  where  we  are  not  tied  up  by  any 
positive  rule  of  law,  the  opinions  of  physiologists  and 
physicians  must  necessarily  have  great  weight.  As  to 
the  maximum  term  of  gestation — according  to  Sir 
Edward  Coke,  the  "  legitimum  tempus  appointed  by 
law  at  the  furthest  is  nine  months,  or  forty  weeks  ; " 
for  which  he  cites  an  old  case  of  Robert  Radwell,  in 
the  reign  of  Edward  I.,  (a)  and  endeavors  to  fortify 
his  position  by  a  passage  from  the  Book  of  Esdras.  (fr) 
But  this  doctrine  is  not  clear  even  upon  the  ancient 
authorities ;  (c)  while  it  is  denied  by  the  modern,  (a) 
and  is  contrary  to  experience.1     According  to  many 

(z)  1    Hale,   P.    C.   26  ;    4   Blackst.  said    I,    '  No,    Lord,    that     can    she 

Comm.  23.  not.' " 

(a)  Co.  Litt.  123b.  (c)  See    them    collected     and    ably 

(/>)  2  Esdras,  iv.  40,  41.     "  Go  thy  commented  on  by    Mr.  Hargrave,   in 

way   to    a    woman   with    child,    and  his  edition  of  Co.  Litt.  123b,  n.  (2). 

ask  of  her,  when  she  hath  fulfilled  her  {d )  Runnington  on  Ejectment,  383, 

nine  months,  if  her  womb   may  keep  et  seq. 

the  birth  any  longer  within  her.  Then 

1  In  the  Commonwealth  v.  Hooner  (or  Porter),  cited  in 
Taylor's  Medical  Jurisprudence,  vol.  ii.  p.  296  (2d  Ed.),  the 
alleged  duration  of  pregnancy  must  have  been  three  hundred 
and  thirteen  days,  or  forty-four  weeks  and  five  days.  The 
prosecutrix  deposed  that  she  had  had  frequent  intercourse  with 
the  defendant  on  the  23d  March,  1845,  and  not  subsequently, 
which  fact  also  appeared  in  evidence — while  the  child  was 
burn  on  the  30th  of  January,  1846.     "  Twelve  obstetric  phy- 


PRESUMPTIVE    EVIDENCE.  613 

eminent  authorities,  the  usual  period  of  gestation  is 
nine  calendar  months  ;  (e)  but  others  fix  it  at  ten 
lunar  months,  being  two  hundred  and  eighty  days, 
or  nine  calendar  months  and  about  a  week  over. 
(_/")  Another  says  that  "  according  to  the  testi- 
mony of  experienced  accoucheurs,  the  average  du- 
ration of  gestation  in  the  human  female,  is  com- 
prised between  the  thirty-eighth  and  fortieth  weeks 
after  conception."  (g)  It  is,  however,  conceded  on  all 
hands,  that  a  delay  or  difference  in  the  time  may  take 
place,  of  a  few  days,  or  perhaps  even  weeks ;  as  there 
are  numerous  causes,  both  physical  and  moral,  by 
which  delivery  may  be  accelerated  or  retarded.  But 
whether  the  laws  of  nature  admit  of  such  a  phenom- 
enon, as  the  protraction  of  the  term  of  gestation  for  a 
considerable  number  of  weeks  or  months  beyond  the 
accustomed  period,  is  an  unsettled  point.  (Ji)  It  is 
incontestable  that  there  are  to  be  found  on   record  a 

(e)  Harg.    Co.    Litt.    123b,    n.    (2);  273  to  275  days,  but  ten  lunar  months 

Chitty's  Med.  Jurisp.  405.  are  280  days. 

(/)  Beck's    Med.    Jurisp.    356,    7th  (_§•)  Tayl.  Med.   Jurisp.   606-7,  7th 

Ed. ;  who  remarks  that  it  is  very  im-  Ed. 

portant  to  recollect  the  distinction  be-  (/i)   Beck's   Med.    Jurisp.    chap.     9, 

tween    lunar    and    calendar    months.  7th    Ed.  ;    Chitty,  Med.    Jurisp.    405, 

Nine    calendar  months    may  be   from  406  ;    Tayl.    Med.   Jurisp.  525,   c.  54. 

7th  Ed. 

sicians  were  examined  on  the  trial,  and  as  usual  they  differed 
from  each  other.  Some  regarded  it  as  possible,  but  not  prob- 
able, that  gestation  might  be  so  protracted  as  to  reach  three 
hundred  and  thirteen  days :  various  medical  works  were 
quoted  on  the  subject.  The  court  charged  the  jury  that  al- 
though unusual  and  improbable,  this  length  of  gestation  was 
not  impossible,  and  they  returned  a  verdict  finding  that  ihe 
defendant  was  the  father  of  the  child  "  (Id.).  "  In  extra  uterine 
pregnancy  the  foetus  may  be  carried  for  many  years.  Dr. 
Craddock  relates  a  case  in  which  gestation  was  thus  protracted 
for  the  very  long  period  of  twenty-two  years  "  (Phil.  Med. 
Exam.,  May,  1846,  p.  286).  Id.  And  see  Beck's  Medical 
Jurisprudence,  vol.  1,  607  (12th  Ed.). 


614      SECONDARY    RULES    OF    EVIDENCE. 

great  many  cases,  true  or  false,  of  gestation  protracted 
considerably  beyond  the  usual  time.  There  are  old 
instances  of  children  declared  legitimate  by  foreign 
tribunals,  after  a  gestation,  real  or  alleged,  of  ten, 
eleven,  twelve,  thirteen,  and  fourteen  months,  and  even 
longer,  (z)  Upon  the  whole  we  may  fairly  conclude 
that,  admitting  the  possibility  of  gestation  being  pro 
ti  acted  in  the  sense  in  which  the  word  is  here  used, 
the  genuine  cases  of  it  are  rare.  (/£)  It  is,  perhaps, 
hardly  necessary  to  observe  that,  in  all  investigations 
of  this  nature,  the  character  and  conduct  of  the 
mother  are  elements  of  the  highest  importance  to  be 
taken  into  consideration  ;  as  also  are  the  characters  of 
the  deposing  witnesses  and  the  motives  to  falsehood 
or  fabrication  which  may  exist  on  either  side. 

340.  With  respect  to  the  minimum  term  of  gesta- 
tion— it  seems  now  conceded  that,  as  a  general  rule 
no  infant  can  be  born  capable  of  living  until  one 
hundred  and  fifty  days,  or  five  months,  after  concep- 
tion. (/)  There  are,  it  is  true,  some  old  cases  record- 
ed to  the  contrary,  (w)  but  they  have  been  doubted. 
(;j)  It  seems  also  conceded  that  children  born  be- 
fore seven  months  are  very  unlikely  to  live,  and 
that  even  at  seven  months  the  chance  is  against  the 
child.  (0) 

(i)  Sec  a  large  number  collected  in  lateral  ones  may  in  all  cases  abandon 

Beck's  Mel.  Jurisp.  262-76,  7th  Ed..  their  hopes,  unless  sterility  be  actual- 

as  well   as   in   other  authors  who  have  ly    present"  (Louis,    Memoirs    contre 

written  on  the  subject.  Legitimite  des  Naissances  pretendues 

(£)  It  is  difficult    to  withhold  assent  tardives,    as    cited    in    Beck's    Med. 

from  the  following   observations  of  a  Jurisp.  366,  7th  Ed.). 

Freneh  writer:— "If  we  admit  all  the  (/)  Beck's     Med.    Jurisp.    210,    7th 

fad                  '1  by  ancient  and  modern  Ed. 

authors,   of  delivery    from    eleven    to  (w)  Id.,  and    Chitty's    Med.   Jurisp. 

twenty-three   months,   it  will    be   very  406. 

commodious    for   females  ;    and   if  so  (»)  Heck,  Med.  Jurisp.  210,  7'h  Ed. 

great  a  latitude  is  allowed  for  the  pro-  (0)  Id.    212;      Tayl.     Med.    Jurisp 

due  ion  of  posthumous  heirs,   the  col-  615,  et  seq.,  7th  Ed. 


PRESUMPTIVE    EVIDENCE.  615 

341.  We  now  proceed  to  the  consideration  of  pre-' 
sumptions  of  this  kind,  derived  from  obversation  of 
the  moral  world.  Many  of  these  are  founded  on  the 
feelings  and  emotions  natural  to  the  human  heart,  of 
which  we  have  already  seen  an  instance  in  the  cele- 
brated judgment  of  Solomon.  (/)  Following  out  this 
principle,  it  is  held  that  natural  love  and  affection 
form  a  good  consideration,  sufficient  to  support  all 
instruments  where  a  valuable  consideration  is  not  ex- 
pressly required  by  law  ;  (q)  that  money  advanced  by 
a  parent  to  his  child  is  intended  as  a  gift,  not  as  a 
loan,  (r)  &c.  And  it  is  a  maxim  of  law,  "  Nemo 
praesumitur  alienam  posteritatem  suae  praetulisse."  (s) 

342.  The  civil  law  laid  down  as  a  maxim,  "  Qui 
solvit,  nunquam  ita  resupinus  est,  ut  facile  suas  pecu- 
nias  jacet,  et  indebitas  effundat :  "  (f)  and  in  the  com- 
mon law,  the  fact  of  transferring  money  to  another 
person  is  presumptive  evidence  of  payment  of  an  ante- 
cedent debt,  and  not  a  gift  or  loan.  (?/)  "  Non  prae- 
sumitur donatio."(z/) 

343.  It  was  said  by  Abbott,  C.  J.,  in  the  case  of 
Townson  v.  Tickell,  {w)  that,  "  prima  facfe,  every  es- 
tate, whether  given  by  will   or  otherwise,  is  supposed 
to  be  beneficial  to  the  party  to  whom  it  is  given  : ' 
and  presumptions  are  sometimes  founded  on   the   as- 

(p)  1  Kings,  iii.  16.  10,  tit.   2,   1.  50.      See  also   Mascarl. 

{q)  2  Blackst.   Com.    297  ;    Dy.  374,  de  Prob.  Conclu.  76. 

pi.  17  ;  Plowd.  306,  309  ;  Finch,  Law,  (s)  Co.    Litt.    373    a;    Wing.    Max 

25.  285. 

(r)  Hick  v.  Keats,  4  B.  &  C.  69,  71,  (/)  Dig.  lib.    22,   tit.   3,  1.  25.     See 

per    Bayley,    J.       "  Qure    pater    filio  also  Voet.  ad  Pand.   lib.  22,  tit.  3,  n 

emancipato   studiorum  causa    peregre  15. 

agenti  subministravit   si  non  credendi  («)  Welch  v.  Seaborn,  1  Stark.  474; 

animo  pater  misisse  fueret  comproba-  Cary  v.   Gerish,   4  Esp.  9  ;  Aubert  v. 

tus,  sed  pietate  debita  ductus,  in  ratio-  Walsh,  4  Taunt.  293  ;  Breton  v.  Cope, 

nem  portionis,  quse  ex  defuncti  bonis,  I  Peake,  31. 

ad    eundem  filium  pertinuit,    compu-  (v)  Matth.  de  Prob.  cap.  2    n    TO 

tare  aequitas  non  patitur."     Dig,  lib.  (w)  3  B.  &  A.  31,  36 


616    SECONDARY    RULES     OF    EVIDENCE. 

sumption,  that  a  person  must  be  taken  to  be  willing 
lo  receive  a  benefit,  (x)  Thus, in  Thompson  v.  Leach 
(jy)  it  was  held  that  a  surrender  immediately  divests 
the  estate  out  of  the  surrenderor,  and  vests  it  in  the 
surrenderee,  whose  consent  to  the  act  is  implied ;  for 
says  the  book,  "  a  gift  imports  a  benefit,  and  an  as- 
sumpsit to  take  a  benefit  may  well  be  presumed  ;  and 
there  is  the  same  reason  vvhy  a  surrender  should  vest 
the  estate  before  notice  cr  agreement,  as  why  a  grant 
of  goods  should  vest  a  property,  or  sealing  of  a  bond 
to  another  in  his  absence,  should  be  the  obligee's  bond 
immediately,  without  notice/'  In  Smyth  v.  Wheeler, 
(z)  where  a  lease  was  assigned  to  B.  and  C.  on  a  certain 
trust,  Hale,  C.  J.,  said,  "  This  assignment,  being  of  a 
chattel,  is  in  both  the  assignees  till  the  disagreement 
of  B.,  and  then  is  wholly  in  C."  '  So  that  it  is  said  that 
mutual  benefit  is  evidence  of  an  agreement ;  as  where 
two  men  front  a  river,  and  each  of  them  has  land  be- 
tween him  and  the  river,  and  they  cut  through  each 
other's  ground  for  water,  and  that  continues  twenty 
years,  in  such  a  case  an  agreement  may  be  pre- 
sumed. (#)♦ 

344.  It  is  also  a  maxim  running  through  the 
whole  law,  that  every  person  must  be  taken  to  intend 
the  natural  consequences  of  his  acts.  (J>)  Thus  it  is 
held  that,  inasmuch  as  the  effect  of  a  conveyance  of 
property  by  way  of  fraudulent  preference,  must  be  to 
delay  or  defeat  creditors,  the  law  will  presume  that 
such   conveyance  was   made  with  that    intention.  (c) 

(x)  Thompson    v.     Leach,    2  Salk.  (z)  2  Keb.  774. 

618;    al                  'd    3    Lev.    2S4  ;    2  (a)  Vin„  Abr.  Ev.  Q.  A.  pi.  8. 

V       r.  198;  Thomas   v.  Cook,  2  I!.  &  (b)  2    Stark.    Ev.    572,    3rd    Ed.;    I 

Aid.  1 19,  [21.    Si  e  Burton,  Real  Prop.  Greenl.  Ev.  §  18,  7th  Ed. 

67,  8th  Ed.  (c)  Per   Lord  Cairns,    C,   Ex  parti 

2    Salk.    61S  ;    abo   reported  3  Villars,  L.  Rep.,  9  Ch.  Ap.  432,  443. 
Lev.  284  ;  2  Ventr.  198. 


PRESUMPTIVE    EVIDENCE.  617 

But  the  principal  applications  of  this  maxim  are  to  be 
found  in  criminal  cases,  as  will  be  shown  in  a  subse- 
nuent  part  of  this  chapter,  (d)  ■ 


SUB-SECTION  III. 

PRESUMPTIONS   AGAINST    MISCONDUCT. 

PARAGRAPH 

Presi  mptions  against  misconduct        .......  345 

I     Presumptions  against  illegality  ......  346 

Construction  of  ambiguous  instruments  and  acts  .         .  347 

2.  Presumption  of  the  discharge  of  duty       .....  348 

3.  "  Odiosa  et  inhonesta  non  sunt  in  lege  prassumenda  "     .         .  349 

Fraud  and  covin       ..'...  .  349 

Vice  and  immorality      ........  349 

Presumption  of  marriage  .         .  .         .         .         .  349 

Presumption   of  legitimacy    ....  .  349 

4.  Presumption  against  wrongful  or  tortious  conduct       .         .         .  350 

5.  Presumption  against  irreligion 351 

6.  Presumption  of  the  truth  of  testimony       .....  352 

345.  We  next  proceed  to  consider  the  presump- 
tions which  the  law  makes  against  misconduct. 

346.  First,  then,  it  is  a  prassumptio  juris,  running 

(<•/)  Infra,  sect.  3,  sub-sect.  1. 

1  As  a  necessary  consequence  of  knowing  the  law,  every 
one  will  be  presumed  to  know  the  consequences  of  his  own 
acts.  Mears  v.  Graham,  8  Blackf.  144.  So  it  will  be  pre- 
sumed that  a  man  knows  the  nature  of  that  to  which  he  di- 
rects his  name  to  be  signed,  although  he  may  be  unable  to 
read  or  write,  unless  some  advantage  was  taken  of  his  ignor- 
ance. Harris  v.  Story,  2  E.  D.  Smith  (X.  Y.)  363  ;  Andro- 
scoggin Bank  v.  Kimball,  10  Cush.  (Mass.)  373  ;  Clem  v. 
New  and  Lau.  R.  R.  Co.,  9  Ind.  488. 

When  one  instrument  has  by  law  a  conclusive  and  another 
a  prima  facie  character,  a  party  using  either  is  presumed  to  in- 
tend it  according  to  its  legal  effect.  Jones  v.  Ricketts,  7  Md. 
10S. 

And  so  the  law  will  presume  that  a  prisoner  intended  to 
effect  the  ordinary  consequences  of  his  act,  and  it  devolves  on 
him   to   rebut  the  presumption.      People  v.   Orcutt,    1   Paik 
(N.  Y.)  Cr.  252. 


618      SECONDARY    RULES     OF    EVIDENCE. 

through  the  whole  law  of  England,  that  no  person  shall, 
in  the  absence  of  criminative  evidence,  be  supposed  to 
have  committed  any  violation  of  the  criminal  law,1 
whether  malum  in  sc  or  malum  prohibitum,  (e) — or 
to  have  done  any  act  subjecting  him  to  any  species  of 
punishment,  such,  for  instance,  as  a  contempt  of 
court;  (_/")  or  involving  a  penalty,  such  as  loss  of 
dower,  (j?)  &c.  And  this  presumption  is  not  con- 
fined to  proceedings  instituted  for  the  purpose  of 
punishing  the  supposed  offense,  or  of  dealing  with  the 
supposed  conduct;  but  it  holds  in  all  proceedings  for 
whatever  purposes  originated,  and  whether  the  guilt 
of  the  party  comes  in  question  directly  or  collater- 
ally. (/*) 3  It  is,  therefore,  a  settled  rule  in  criminal 
cases,  that  the  accused  must  be  presumed  to  be 
innocent  until  proved  to  be  guilty  ;  and  consequently, 

(e)  Phil.   &  Am.    Ev.   464;    2    Ev.  habitants  of  Twyning,  2  B.  &  A.  386  ; 

Poth.  332.  R.  v.  The  Inhabitants  of  Harborne,  2 

(/)  Scholes  v.  Hilton,  10  M.  &  W.  A.  &  E.  540  ;  Lapsley  v.  Grierson,   1 

15,  17.  Ho.  Lo.  Cas.  498  ;  Rodwell  v.  Redge, 

(g)  Sidney  v.   Sidney,    3    P.    Wms.  1  C.  &  P.   220,  Ross  v.   Hunter,  4  T. 

276  ;  Watkins  v.  Watkins,  2  Atk.  96  ;  R.  53,  3S,  per  Buller,  J. ;  Leete  v.  The 

Clarke  v.  Periam,  Id.  333.  Gresham    Life   Insurance  Society,    15 

(A)  Williams    v.    The     East    India  Jurist,  1161,  1162,  per  Piatt,  B. 
Company,  3  East,  192  ;  R.  v.  The  In- 

1  United  States  v.  Gooding,  12  Wheat.  460;  Id.  v.  Doug- 
lass, 2  Blatchf.  207. 

3  So  in  civil  cases  the  presumption  will  be  in  favor  of  regu- 
larity. For  instance,  in  a  prosecution  for  not  making  the  re- 
quisite report  of  a  vessel's  arrival  to  the  officer  of  customs, 
the  burden  is  upon  the  government  to  prove  that  it  was  not 
made  at  the  proper  office.  United  States  v.  Galacar,  1 
Sprague,  545. 

An  insolvent  debtor,  when  he  renders  a  schedule  of  his 
property  and  debts,  is  presumed  to  tell  the  truth,  and  not  to 
commit  perjury.     Harlett  v.  Hewlett,  4  Edw.  (N.  Y.)  7. 

It  bank  notes  are  shown  to  have  circulated  as  money,  they 
will  be  presumed  to  be  genuine.  Hummel  v.  State,  17  Ohio 
St.  628. 


PRESUMPTIVE    EVIDENCE.  619 

that  the  onus  of  proving  everything  essential  to  the 
establishment  of  the  charge  against  him,  lies  on  the 
prosecutor — a  maxim  founded  on  the  most  obvious 
principles  of  justice  and  policy.  (7)  It  is,  however, 
in  general  sufficient  to  prove  a  prima  facie  case  ;  for 
as  has  been  well  remarked,  "  imperfect  proofs,  from 
which  the  accused  might  clear  himself,  and  does  not, 
become  perfect."  (/)  "In  drawing  an  inference  or 
conclusion  from  facts  proved,  regard  must  always  be 
had  to  the  nature  of  the  particular  case,  and  the 
facility  that  appears  to  be  afforded,  either  of  explana- 
tion or  contradiction.  No  person  is  to  be  required  to 
explain  or  contradict,  until  enough  has  been  proved 
to  warrant  a  reasonable  and  just  conclusion  against 
him  in  the  absence  of  explanation  or  contradic- 
tion." (/£)  Undoubtedly,  the  more  serious  or  improb- 
able the  charge,  the  stronger  must  be  the  prima  facie 
proof;  and  additional  caution  is  required  when  the 
offense  is  of  very  ancient  date  ;  for  in  such  cases  the 
means  of  defense,  particularly  by  proof  of  an  alibi — 
when  true,  the  most  complete  of  all  answers — are 
greatly    diminished.  (/)     Although    in    point    of  law 

(i)  Introd.  pt.  2,  §  49.     It  is  related  (/)  Wills,    Circ.    Ev.    143,    3rd    Ed. 

that  on  one  occasion,  when  the  Empe-  There  are  several  instances  ofsuccess- 

ror  Julian  was    sitting   to  administer  ful  prosecution,  after  the  lapse  of  very 

justice,  a  prosecutor,  seeing  his  cause  long  time  from  the  commission  of  the 

about  to  fail    for  want   of  proof,  ex-  offense.     See,    in   particular,    the  case 

claimed,  "Ecquis,  florentissime,  Caesar,  of  W.   A.    Home,  who   was   tried  and 

nocens  esse   poterit  usquam,  si  negare  executed  in    1759,  for  the   murder   of 

suffecerit?"      To  which  the  emperor  his  child  in  1724  (2  Annual  Reg.  36?); 

readily    rejoined,   "  Ecquis     innocens  also,  that  of  Joseph  Wall,  Governor  of 

esse   poterit,    si    accusasse    sufficiet."  Goree,  who  was   executed  in    1S02  for 

Ammianus  Marcellinus,  lib.  18,  c.  1.  a  murder  committed   in  17S2  (28   ITo 

(J)  Beccaria,    Dei    Delitti    et    delle  St.  Tr.    51).     In   the   celebrated   case 

Pene,  §  7.  of  Eugene   Aram,    al-o,  there  was   an 

(k)  Per  Abbott,  C  J.,  in  R.  v.  Bur-  interval  of  about   fourteen    years  be- 

dett,  4  B.   &  A.   95,   161-2.     See  also  tween    the  murder   and    the    trial    (» 

per    Lord    Mansfield,    in    Blatch    v.  Annual  Reg.  351). 
Archer,  Cowp.  63,  65. 


620      SECONDARY    RULES    OF    EVIDENCE. 

"  Nullum  tcmpus  occurrit  regi ;  "  yet  as  matter  of 
practice,  "  Accusator  post  rationabile  tempus  non  est 
audiendus,  nisi  bene  de  se  omissionem  excusaverit." 
(;«)  But  the  presumption  in  favor  of  innocence  will 
not  be  made  when  a  stronger  presumption  is  raised 
against  it  by  evidence  or  otherwise.  (»)  ' 

347.  It  is  a  branch  of  this  rule  that  ambiguous 
instruments  or  acts  shall,  if  possible,  be  construed  so 
as  to  have  a  lawful  meaning.  (0)  Thus,  where  a  deed, 
or  other  instrument  it  susceptible  of  two  constructions, 
one  of  which  the  law  could  carry  into  into  effect,  while 
the  other  would  be  in  contravention  of  some  leo-al 
principle  or  statutory  provision,  the  parties  will  always 
be  presumed  to  have  intended  the  former.  "In  facto 
quod  se  habet  ad  bonum  et  malum,  magis  de  bono 
quam  de  malo,  lex  intendit."  (/)  Thus,  where  tenant 
in  tail  makes  a  lease  for  life,  without  saying  for  whose 
life,  it  shall  be  understood  that  he  meant  his  own,  as 
that  is  an  estate  he  may  lawfully  create  ;  whereas,  if 
he  meant  it  for  the  life  of  any  one  else,  he  would 
exceed  his  power,  and,  previous  to  the  3&  4  Will. 4, 
c.  27,  s.  39,  would  have  worked  a  discontinuance.  (^) 
So  where  A,  who  had  commenced  an  action  against 
B,  to  recover  a  sum  of  money,  agreed  with  C  to 
suspend  the  proceedings,  on  payment  of  a  specified 
sum,  and  the  delivery  of  several  promissory  notes,  C 
undertaking, — in  the  event  of  any  of  the  notes  being 
dishonored,  and  A  issuing  a  capias  or  detainer  against 

(m)  Moore,  Si 7.  57. 

(«)  Sec  supra,  sect.  1,  subject.  3.  (/> )  Co.  Litt.  78b. 

(o)  Co.  Litt.  42a  &  b;    Finch,  Law,  (q)  Id.  42a. 

1  So  an  attempt  to  escape  from  arrest  upon  a  charge  oi 
crime,  may  raise  a  presumption  of  guilt.  State  v.  Williams. 
54  Mo.  170.  But  circumstances  have  been  held  *x>  vary  even 
the  presumption  of  innocence.  Harrington  v.  State,  14'  Ohio, 
264. 


PRESUMPTIVE    EVIDENCE.  621 

B, — either  to  surrender  him  to  custody,  9*  pay  the 
money  due  on  the  notes ;  it  was  held  that  the  contract 
was  legal,  and  must  be  understood  to  mean,  than  C 
was  to  procure  the  surrender  of  B  by  lawful  means,  as 
by  his  consent,  and  not  by  any  attempt  to  take  him 
forcibly  into  custody,  (r) 

348.  2.  All  persons  are  presumed  to  have  duly 
discharged  any  obligation  imposed  on  them  either  by 
unwritten  or  written  law.1  Thus  the  judgment  of 
courts  of  competent  jurisdiction  are  presumed  to  be 
well  founded  ;  (s)  and  their  records  to  be  correctly 
made;  (/)  judges  and  jurors  are  presumed  to  do 
nothing    causelessly   or   maliciously ;   («) — "  De   fide 

(r)  Lewis  v.  Davidson,  4  M.  &  W.  (t)  1  Stark.  Ev.  252.3rd  Ed.;  Read 

654.  v.  Jackson,  1  East,  35 r  ;  Earl  of  Car- 

(s)  "Res  judicata  pro  veritate  ac-  narvon  v.  Villebois,  ij  M.  &  W.  313. 
cipitur."    Co.  Litt.  103a  ;  Dig.  lib.  50,  (u)  Anders.  47,  nl    34  ;    Sutton    v. 

tit.  17,  1.  207  ;  Introd.  Part  2,  §  44.  Johnstone,  1  T.  i<    -^93,  503  ;   Fray  v. 

1  So  there  is  a  presumption  of  payment.  Lapse  of  time 
during  which  no  demand  of  a  debt  has  been  made,  will,  in  a 
proper  case,  authorize  a  presumption  that  it  has  been  paid. 
Hopkins  v.  Page,  2  Brock.  20;  Kirkpatrick  v.  Langphier,  1 
Cranch  C.  Ct.  85;  Miller  v.  Evans,  2  Id.  72;  Anderson  v. 
.Smith,  3  Mete.  (Ky.)  491  ;  Helm  v.  Jones,  3  Dana  (Ky.)  86.  The 
jury  may  presume  a  bond  has  been  paid,  after  the  lapse  of  a  less 
time  than  twenty  years,  under  peculiar  circumstances  ;  and  in 
all  cases,  after  that  time  has  elapsed.  Dennison  v.  M'Keen,  2 
Mcl^ean,  253.  The  possession  of  a  bond  by  the  obligor,  creates 
a  presumption  of  its  payment.    Carroll  v.  Bowie  7  Gill  (Md.)  34. 

An  entry  made  nineteen  years  previous  to  the  trial,  in  the 
defendant's  books,  that  a  note  of  twenty-three  years'  standing 
was  paid,  was  allowed  to  be  read  in  evidence,  to  support  the 
general  presumption  of  payment  after  such  a  length  of  time. 
Rodman  v.  Hoops,  1  Dall.  85. 

The  obligee's  endorsement  of  a  payment  on  a  bond,  is  not 
evidence  to  rebut  the  presumption  of  payment,  unless  made 
with  the  privity  of  the  obligon  Kirkpatrick  v.  Langphier,  1 
Cranch  C.  Ct.  85;  Cremer's  Estate,  5  Watts  &  S.  (Pa.)  331 
Though  it  seems,  that  evidence  of  the  defendant's  poverty  an. 
insolvency  is  evidence  going  to  rebut  presumption  of  pay- 
ment.    Farmers'  Bank  v.  Leonard,  4  Har.  (Del.)  536. 


622     SECONDARY    RULES    OF    EVIDENCE. 

judicis  non  recipitur  quaestio,"  (x)  "  Quae  in  curia  regis 
acta  sunt,  rite  agi  praesumuntur  ;"  (y)  public  officers 
are    presumed    to    do   their   duty ;  (z) l   a   parson    is 

Blackburn,  3   B.  &   S.   576,  578,  note,  ()>)  3  Bulst.  43. 

and  the  authorities  there  referred  to.  (2)  3  Stark.  Ev.  936,  3rd  Ed.;  Simms 

(x)  Bac.  Max.  Reg.  17.  v.  Henderson,  11  Q.  B.  1015. 

1  Acts  which  purport  to  have  been  done  by  public  officers, 
in  their  official  capacity,  and  within  the  scope  of  their  duty, 
will  be  presumed  to  have  been  regular  and  in  accordance  with 
their  authority,  until  the  contrary  appears.  Ross  v.  Reid,  1 
Wheat.  482  ;  United  States  v.  Arredondo,  6  Pet  691  ;  Strother 
v.  Lucas,  12  Id.  410  ;  Philadelphia,  &c.  R.  R.  Co.  v.  Stimpson, 
14  Id.  448 ;  Delassus  v.  United  States,  9  Id.  117;  Wilkes  v. 
Dinsman,  7  How.  89  ;  Minter  v.  Crommelin,  18  How.  87  ;  1355, 
Russell  v.  Beebe,  Hempst.  704;  Den  v.  Hill,  1  McAll.  480  ; 
Dunlop  v.  Munroe,  1  Cranch  C.  Ct.  536.  Compare  Ruggles 
v.  Bucknor,  1  Paine,  358. 

The  presumption  is  that  a  sheriff  who  sells  property  on 
execution,  has  done  his  duty  in  previously  making  a  levy. 
Smith  v.  Hill,  22  Barb.  (N.  Y.)  656. 

And  where  property  is  sold  by  a  sheriff  in  another  state, 
it  will  be  presumed  that  the  deed  given  is  in  conformity  with 
the  laws  of  that  state.     Sadler  v.  Anderson,  17  Tex.  245. 

The  legal  presumption  is  that  public  officers  exercising 
their  office  have  been  duly  sworn.    Nelson  v.  People,  23  N.  Y. 

293- 

Every  officer  acting  under  the  sanction  of  an  oath,  or  in 

whom  government  reposes  trust,  shall  be  presumed  to  have 
done  his  duty  until  the  contrary  be  proved.  Hickman  v.  Boff- 
man,  Hard.  (Ky.)  348. 

Though  a  commissioner,  before  whom  a  deposition  is 
made,  do  not  state  that  he  personally  knew  the  affiant,  it  will 
be  so  presumed,  in  the  absence  of  evidence  that  the  officer 
violated  his  duty.     Succession  of  Lauve,  6  La.  Ann.  530. 

It  can  not  be  presumed  that  a  licensed  engineer  who  has 
taken  an  oath  to  perform  his  duties  faithfully,  would  obey 
illegal  orders  of  the  captain  in  violation  of  his  duty.  McMahon 
v.  Davidson,  12  Minn.  357. 

Sworn  public  officers  not  charged  with  fraud  must  be  sup- 
posed, until  the  contrary  be  shown,  to  have  properly  exer- 
cised  the  discretion  vested  in  them  by  law.  Templeton  v. 
Morgan,  16  La.  Ann.  438. 


PRESUMPTIVE    EVIDENCE.  623 

presumed  to  be  always  resident  on  his  benefice ;  (a)  a 
beneficed  clergyman  is  presumed  to  have  read  the 
articles  of  the  church,  (J?)  and  to  have  made  the 
declaration  required  by  13  &  14  Car.  2,  c.  4,  relative  to 
the  uniformity  of  public  prayer,  (c)  &c.  So,  oral 
evidence  is  not  receivable  of  what  the  accused  or  the 
witnesses  said  when  before  the  committing  magistrate, 
unless  there  be  positive  proof  that  what  they  did  say 
was  not  taken  down  in  writing;  (^)  for  the  presump- 
tion of  law  is  that  the  directions  of  the  statutes  in 
that  behalf  were  obeyed,  (e)  '  So,  where  goods  seized 
for  a  distress  are  appraised  and  sold,  according  to  the 
provisions  of  the  2  W.  &  M.  c.  5,s.  2,  st.  1,  the  sale  will 
be  presumed  to  have  been  for  the  best  price  that 
could  be  got  for  them.  (_/")  And  under  the  repealed 
statute,  13  Car.  2,  c.  1,  s.  12,  st.  2,  which  required 
that  alJ  parties  filling  corporate  offices,  should  have 
taken  the  sacrament  according  to  the  rights  of  the 
Church  of  England,  within  a  year  next  before  their 
election,  every  party  filling  such  an  office  was  presumed 
to  have  complied  with  the  statute,  (g) 

349.  3.  It  is  a  principle  of  law  nearly,  if  not 
altogether,  as  universal  as  the  former,  that  "  Odiosa  et 
inhonesta  non  sunt  in  lege  praesumenda."  (/i)  In 
furtherance  of  this,  it  is  a  maxim  that  fraud  and  covin 
are  never  presumed,  (7)  even  in  third   parties  whos^ 

(a)  Co.  Litt.  78b.  (/)  Com.  Dig.  Distress,  D.  8. 

{b)  Monke  v.  Butler,  I  Rol.  83.  (g)  R.  v.  Hawkins,  10  East,  211. 

(c)  Powell  v.  Milburn.  3  Wils.  355.  ( k)  10  Co.  56a. 

( d)  2  Ev.  Poth.  335-6  ;  Phillips  v.  (i)  10  Co.  56a  ;  Cro.  El.  292,  pi.  2  ; 
Wimburn,  4  Car.  &  P.  273  ;  Parsons  v.  Cro.  Jac.  451 ;  Cro.  Car.  550  ;  Master 
Brown,  3  Car.  &  K.  295-6.                          v.    Miller,   4    T.     R.    320,    333,   per 

(.f)  See  those  statutes,  supra,  bk.  1       Buller,  J. 
Pt-  r,  §  105. 

'  And  so  the  law  presumes  that  proper  official  care  is  taken 
of  public  files  and  records.     Hall  v.  Kellogg,  16  Mich.   135. 


624     SECONDARY    RULES    OF    EVIDENCE. 

conduct  only  comes  in  question  collaterally.  (/£)  '  So 
tnc  law  presumes  against  vice  and  immorality  ;  and, 
on  this  ground,  presumes  strongly  in  favor  of  mar- 
riage ;  (/  )  so  that  cohabitation  and  reputation  are  held 
to  be  presumptive  evidence  of  marriage,  (m)  in  all 
cases  except  in  prosecutions  for  bigamy,  and  in  cases 
where  damages  are  claimed  for  adulterv  under  the  20 
&  21  Vict.  c.  85,  s.  33,  in  each  of  which  proceedings 
an  actual  marriage  must  be  proved.  (V)  The  former 
of  these  exceptions  seems  to  rest  on  the  ground  that 
the  accused  has  the  presumption  of  innocence  in  his 
favor ;  and  the  latter,  partly  on  the  ground  that  the 
proceeding  is  in  the  nature  of  a  penal  one  ;  but  chiefly 
because  it  might  otherwise  be  turned  to  a  bad  pur- 
pose, by  persons  giving  the  name  and  character  of  wife 
to  women  to  whom  they  had  not  been  married. 

One  of  the  strongest  illustrations  of  this  principle 
(although  resting  also  in  some  degree  on  grounds  of 
public  policy),  is  the  presumption  in  favor  of  the 
legitimacy   of    children — "  Semper    praesumitur    pro 

(i)  Per  Buller,  J.,  in  Ross  v.  Hunter,  («)  Morris  v.  Miller,  4  Burr,  2057  , 

4  T.  R.  33,  38.  Birt  v.  Barlow,  1  Dougl.  171  ;  Cather- 

(/)    Harrison    v.    The   Burgesses   of  wood  v.  Caslon,  13  M.  &  W.  261,  265. 

Southampton,  4  De  G.,  M.  &  G.  137  ;  This  last  case  is  based  on  R.  v.  Millis, 

Harrod  v.  Harrod,  1  Kay  &  J.  4.  10  CI.  &  F.  534.,  as  to  which,  see  the 

(ot)   Doed.   Fleming  v.   Fleming,  4  observation    of    Willes,   J.,    in    R.   v# 

Bing.  266;    Reed  v.  Passer,  I   Peake,  Manwaring,  1  Dearsl.  &  B.  132,  139; 

233;  Sichel  v.  Lambert,  15  C.  B.,  N.  and  also  Beamish  v.  Beamish,  9  Ho. 

S.  781,  7S7.  Lo.  Cas.  274. 

1  In  equity,  as  well  as  law,  fraud  is  never  to  be  presumed 
without  proof.  Hager  v.  Thomson,  1  Blackf.  80.  S.  P.  Coopti 
v.  Galbraith,  3  Wash.  546  ;  Exp.  Knowles,  2  Cranch  C.  Ct. 
576;  Robinson  v.  Quarles,  1  La.  Ann.  460  ;  Succession  oi 
Warren,  4  Id.  451  ;  Martin  v.  Drumn,  12  Id.  494;  Lesseps  v 
Weeks,  Id.  739;  Blaisdell  v.  Cowell,  14  Me.  370;  Suiter  v, 
Lackman,  39  Mo.  91 ;  Roberts  v.  Guernsey,  3  Grant  (Pa.)  Cas. 
237  ;  Reeves  v.  Dougherty,  7  Yerg.  (Tenn.)  222  ;  Short  Staple 
1  Gall.  104.     See  also  Gayso  v.  Delaroderie,  9  La.  Ann.  278. 


PRESUMPTIVE    EVIDENCE.  625 

legitimatione  puerorum,  et  filiatio  non  potest  pro- 
bari."  (o)  This  is  a  prsesumptio  juris  et  de  jure, 
that  a  child  born  after  wedlock,  of  which  the  mother 
was,  even  visibly,  pregnant  at  the  time  of  marriage,  is 
the  offspring  of  the  husband.  (/)  So  every  child 
born  during  wedlock,  where  the  married  parties  are 
neither  infra  nubiles  annos,  nor  physically  disqualified 
for  sexual  intercourse,  is  presumed  legitimate ;  (^) 
according  to  the  maxim  "pater  est  quern  nuptse  de- 
monstrant," — a  presumption  which  holds  even  when 
the  parties  are  living  apart  by  mutual  consent ;  but 
not  when  they  are  separated  by  a  sentence  pro- 
nounced by  a  court  of  competent  jurisdiction  ;  in 
which  case  obedience  to  the  sentence  of  the  court 
will  be  presumed,  (r)  In  very  ancient  times  this 
presumption  of  legitimacy  was  only  presumptio 
juris ;  (s)  but  it  was  subsequently  raised  into  a  con- 
clusive presumption,  if  the  husband  was  within  the 
four  seas  at  any  time  during  the  pregnancy  of  the 
wife.  (f)  In  later  times,  however,  this  has  been  very 
properly  relaxed  ;  and  it  is  now  competent  to  negative 
the  fact  of  sexual  intercourse  between  the  parties 
during  the  time  when,  according  to  the  course  of 
nature,  the  husband  could  have  been  the  father  of  the 
child,  (u)  But  if  the  fact  of  sexual  intercourse 
between  the  husband  and  wife  within  that  time,  has 
been  established  to  the  satisfaction  of  the  tribunal,  the 

(0)  5  Co.  98b.     See   also  Co.  Litt.  (/)  Co.  Litt.  224a;  R.  v.  Alberton,  1 

126a.  L.  Raym.    395-6  ;    R.   v.    Murrey,    I 

{p)   I   Rol.   Abr.    Bastard,  B.;    Co.  Salk.  122. 

"Litt.  244a ;    1  Phill.  Ev.  473,  note  4,  (u)  Morris   v.    Davies,    5    CI.   &   F. 

10th  Ed.  163  ;  R.  v.  The  Inhabitants  of  Mans 

(?)  1  Rol.  Abr.  Bastard,  B.  field,  1  Q.  B.  444.     And  see  Legge  v. 

(r)  St.  George's  v.  St.  Margaret's,  1  Edmunds,  25  L.  J.,  Ch.   125  ;  Plowes 

Salk.    123  ;    Sidney    v.    Sidney,    3    P.  v.    Bossey,    31    lb.    681  ;    Atchley    v. 

Wms.  275.  Sprigg,  33  lb.  345. 

(t)  I  Phill.  Ev.  46s,  10th  Ed. 
40 


626      SECONDARY    RULES    OF    EVIDENCE. 

presumption  can  not  be  rebutted  by  proof  of  adultery  ; 
as  the  law  will  not,  in  that  case,  allow  a  balance  of 
evidence  as  to  who  was  most  likely  to  be  the  father  of 
the  child,  (x)  J 

350.  4.  Wrongful  or  tortious  conduct  will  not  be 
presumed,  "Injuria  non  prsesumitur ; "  (j/)  "Nullum 
iniquum  est  in  jure  prsesumendum."  {£)  Thus,  no 
species  of  ouster,  such  as  disseisin,  discontinuance,  &c. 
will  be  presumed  without  proof,  either  direct  or 
presumptive,  (a)  So  when  a  party  to  any  forensic 
proceeding  tenders,  in  support  of  his  case,  a  document 
which  must  be  taken,  prima  facie,  to  be  the  property 
of  another,  the  court  will  presume  that  he  did  not 
come  by  it  in  any  tortious  way.  (U) 2  And  where  a 
person  who  is  beyond  the  jurisdiction  of  a  court,  has 
in  his  possession  a  document  required  by  that  court, 
for  the  purposes  of  justice,  it  is  not  to  be  presumed 
that  lie  will  withhold  it.  (c) 

35  *•  5-  Want  of  religious  belief,  or  irreligious 
conduct,  will  not  be  presumed.     "All  members  of  a 

(.r)  Banbury  Feerage  Case,  1  Sim.  &  (a)  Doe  d.  Fishar  v.  Prosser,  Cowp. 

S.  155  ;  Head  v.  Head,  Id.  152  ;  Mor-  217.     See  Co.   Litt.  42  a  &  b  ;  Peace- 

ris  v.  Davies,  5  CI.  &  F.  163  ;  Case  of  able  d.   Hornblovver  v.  Read,  1  East, 

the   barony  of  Save  and  Sele,  1  IIo.  568;  Thomas  v.  Thomas,  2  Kay  &  J. 

I.o.   Cas.    507;  Wright  v.  Holdgate,  3  79. 

Car.  &  K.  13S.  (6)  Littleton,  sect.  375-377. 

(y)  Co.  Litt.  232b.  (c)  Boyle  v.  Wiseman,  10  Exch.  647. 

(2)  4  Co.  72a. 

1  Every  child  is  presumed  to  be  legitimate,  and,  in  the  ab- 
sence of  evidence  to  the  contrary,  no  proof  of  marriage  of  the 
parents  is  necessary.  Mere  rumor  of  illegitimacy  is  not  suf- 
ficient to  require  proof  of  marriage.  Strode  v.  Magowan,  2 
Bush.  (Ky.)  621.  Suspicions  or  rumors  do  not  rebut  this  pre- 
sumption.  Caujolle  v.  Ferric,  26  Barb.  (N.  Y.)  177.  The 
presumption  of  legitimacy  can  not  be  rebutted  by  slight  evi- 
dence. Dinkins  v.  Samuel,  10  Rich.  (S.  C.)  66;  Herring  v. 
Goodson,  43  Miss.  392. 

'  The  law  will  never  construe  a  possession  tortious  unless 
fiom  necessity.     McEwen  v   Portland,  1  Oregon,  300. 


PRESUMPTIVE    EVIDENCE.  627 

Christian  community  being  presumed  to  entertain  the 
common  faith,  no  man  is  supposed  to  disbelieve  the 
existence    and    moral    government    of     God."    (d) ' 

(d)  1  Greenl.  Ev.  §  42,  7th  Ed. 

1  See  the  question  whether  Christianity  is  parcel  of  the 
common  law  of  the  United  States,  discussed  in  Morgan's 
"  Law  of  Literature,"  vol.  1,  pp.  33-35*  38>  39>  4J-46.  The 
author  observes  :  "  In  so  far,  then,  as  Christianity  in  its  popu- 
lar sense  is  contradistinguished  from  barbarism  or  heathenism, 
in  so  far  and  in  such  sense  as  the  Republic  of  the  United 
States  is  reckoned  among  the  Christian  rather  than  among  the 
heathen  nations  of  the  globe — we  submit  that  Christianity  is 
'parcel  of  our  common  law.'  .  .  .  In  concluding  our  ex- 
amination of  whether  and  to  what  extent  '  Christianity  is  par- 
cel of  the  common  law  of  the  United  States,'  we  can  not  do 
better  than  adopt  and  make  our  own  the  words  of  Chancellor 
Kent,  in  The  People  v.  Ruggles,  8  Johns.  291,  believing  that 
what  he  finds  in  this  case,  and  in  the  contemplation  of  the  con- 
stitution of  the  state  of  New  York,  will  be  found  to  be  within 
the  spirit  of  the  unwritten  law  of  the  nation  at  large. 

"'The  free,  equal,  and  undisturbed  enjoyment  of  religious 
opinion,  whatever  it  may  be,  and  free  and  decent  discussions 
on  any  religious  subject,  is  granted  and  secured;  but  to  revile 
with  malicious  and  blasphemous  contempt  the  religion  pro- 
fessed by  almost  the  whole  community,  is  an  abuse  of  that 
right.  .  .  .  We  are  not  to  be  restrained  from  animadver- 
sion  upon  offenses  against  public  decency,  merely  because 
there  may  be  barbarous  nations  whose  sense  of  shame  would 
not  be  affected  by  what  we  should  consider  the  most  audacious 
outrages  upon  decorum.  It  is  sufficient  that  the  common  law 
checks  upon  words  and  actions  dangerous  to  the  public  wel- 
fare apply  to  our  case,  and  are  suited  to  the  condition  of  this 
and  every  other  people  whose  manners  are  refined,  and  whose 
morals  have  been  elevated  and  inspired  with  a  more  enlarged 
benevolence,  by  means  of  the  Christian  religion.' 

"  The  doctrine,  however,"  concludes  the  author,  "  has  not 
commanded  the  full  assent  of  many  learned  minds.  It  was 
disputed  by  Jefferson  (letter  to  Cartwright,  9  Am.  Jurist;  Life 
and  Letters  of  Joseph  Story,  vol.  1,  pp.  430-434;  vol.  2, 
pp.  8,  461-464),  and  by  eminent  counsel  in  their  argu 
ments  in  the  Girard  Will  Case).  See,  generally,  as  to  the 
doctrine,  Lindenmuller  v.  The  People,  33  Barb.  548  ;  Bedford 
Charity    1    Swans.  517;  Da  Costa  v.  Paz,     2  Swans.   410  n. , 


628      SECONDARY    RULES    OF    EVIDENCE. 

"  Nemo  prsesumitur  esse  immemor  suseseternae  salutis, 
et  maxime  in  articulo  mortis;"  (e)  and  "  In  his  qua? 
sunt  favorabiliora  animse  quamvis  sunt  damnosa  rebus, 
fiat  aliquando  extensio  statuti."  (/)  It  is  partly  on  this 
principle,  that  the  declarations  of  a  person  who  has 
net  a  violent  end,  made  by  him  when  under  the 
conviction  of  his  impending  death,  are,  contrary  to 
the  general  principle  which  excludes  hearsay  testimony, 
receivable  in  evidence  against  a  party  charged  with 
being  the  cause  of  the  death,  (g)  So,  although  by  the 
Statute  of  Marlbridge  (52  Hen  IIL),c.  6,  a  feoffment 
to  a  relative  was  deemed  a  collusive  act,  intended  to 
deprive  the  lord  of  the  fee  of  his  wardship,  no  will  of 
land  devisable  by  the  custom  or  devise  of  a  use, 
before  34  Hen.  8,  c.  5,  could  be  impeached  for  such 
collusion.  (^) 

352.  6.  All  testimony  given  in  a  court  of  justice 
is  presumed  to  be  true  until  the  contrary  appears,  (z ) 
"  La  ley  ne  veut  que  on  donne  faux  evidence."  (/) 
This  presumption  seems  based  on  four  grounds:  1.  A 
reliance  on  the  truth  of  human  testimony  in  general ; 
(/£)  2.  That  the  law  will  not  presume  crime,  (/)  i.  e. 
perjury  ;  3.  That  the  law  will  not  presume  wrong,  i.  e. 
an  intention  to  injure  the  party  whom  the  evidence 
affects  ;  and  4.  That  the  law  will  not  presume  irrelig- 
ion,  {m)  and  consequently  will  not  presume  inten- 
tional false  swearing. 

(e)  6  Co.  76a.  (/)  Per  Grevil,   M.  20  H.   VII.,   n 

(/)  10  Co.  ioib.  B.  pi.  21. 

(<f)  Supra,  bk.   2,  pt.  2,  and  infra,  {k)  Introd.  pt.  I,  §§  15  et.  seq. 

ch.  4-  (/)  Ante,  %  346. 

(//)  2  Inst.  1 12  ;  6  Co.  76a.  (m)  Ante,  §  351. 

{i)  Cro.  Jac.  601,  pi.  26. 

Att'y-Gen'l  v.  Pearson,  3  Mer.  399 ;  Andrew  v.  N.  Y.  Bible  & 
Prayer  Book  Sue,  4  Sandf.  157." 


PRESJMPTIVE    EVIDENCE.  629 

4 

SUB-SECTION  IV. 

PRESUMPTIONS    IN    FAVOR   OF    VALIDITY    OF     ACTS. 

PARAGRAPH 

Maxims  "  Omnia  prsesumuntur  rite  esse  acta,"  &c 353 

General  view  of  the  subject 354 

1.  Priora  a  posterioribus 354 

2.  Posteriora  a  prioribus 354 

3.  Media  ab  extremis      .  354 

Division  of  the  subject 355 

1.  Official  appointments 35^— 5^ 

2.  Official  acts     . 359 

3.  Judicial  acts 3DO 

Rule  does  not  apply  to  give  jurisdiction  .         .         .  3DI 

4.  Extra-judicial  acts 3*>2 

Execution  of  wills 3^3 

Collateral  facts 3^4 

Construction  of  instruments •  3^4 

Principle  much  extended  by  modern  statutes 3° 5 

353.  The  important  maxims,  "  Omnia  prsesumun- 
tur rite  esse  acta;  " 1  («)  "Omnia  prsesumuntur  solen- 
niter  esse  acta;  (V)2  Omnia  prsesumuntur  legitime  facta, 
donee  probetur  in  contrarium,"3  &c,  (p)  must  not  be 
understood  as  of  universal  application,  (q)  The 
extent  to  which  presumptions  will  be  made  in  support 
of  acts,  depends  very  much  on  whether  they  are 
favored  or  not  by  law,  and  also  on  the  nature  of  the 
fact   required  to    be   presumed.     The   true   principle 

(«)  2  Ev.  Poth.   335  ;  I   Phill.   Ev.  generality  :  e.  g.  Omnia  praesumuntur 

480,   10th  Ed.  ;  3  B.  &  C.  327  ;  7  Id.  rite   esse   acta  ;  Omnia    prassumuntur 

790;  18  C.  B.  45  ;  6  E.  &  B.  973  ;  13  contra  spoliatorem ;  Omnis  innovatio 

C.  B.,  N.  S.  639.  plus  novitate  perturbat  quam  utilitate 

(0)  12  Co.  4  &  5.  prodest  ;  Omnis  definitio  in  lege  pe- 

(p)  Co.  Litt.  232b  ;  8  CI.  &  F.  144  ;  riculosa,  &c.      If  definitions  are  dan- 

10  CI.  &  F.  162.  gerous  in  law,  universal  propositions 

(a)  Many  of   our  legal  maxims  are  are  not  less  so. 
txpressed  with  too  great  a  degree  of 

1  All  things  are  presumed  to  Have  been  done  rightly. 

2  All  things  are  presumed  to  have  been  done  solemnly. 
All  things  are  presumed  to  be  legitimately  done,  until 

the  contrary  is  proved. 


630      SECONDARY    RULES    OF    EVIDENCE. 

intended  to  be  conveyed  by  the  rule,  "  Omnia  prae- 
sumuntur  rite  esse  acta,"  and  the  other  expressions 
just  quoted  seems  to  be,  that  there  is  a  general  dis- 
position in  courts  of  justice  to  uphold  official,  judicial 
and  other  acts,  rather  than  to  render  them  inoperative  ; 
and  with  this  view,  where  there  is  general  evidence  of 
acts  having  been  legally  and  regularly  done,  to  dis- 
pense with  proof  of  circumstances,  strictly  speaking 
essential  to  the  validity  of  those  acts,  and  by  which 
they  were  probably  accompanied  in  most  instances, 
although  in  others  the  assumption  rests  solely  on 
grounds  of  public  policy.' 

354.  Taking  a  general  view  of  the  subject,  the 
acts  or  things  thus  presumed  are  divisible  into  three 
classes.  1.  Where,  from  the  existence  of  posterior 
acts  in  a  supposed  chain  of  events,  the  existence  of 
prior  acts  in  the  chain  is  inferred  or  assumed — priora 
praesumuntur  a  posteribus,  (r) — as  where  a  perspec- 
tive right,  or  a  grant  is  inferred  from  modern 
enjoyment,  (i)  2.  Where  the  existence  of  posterior 
acts  is  inferred  from  that  of  prior  acts, — praesumuntur 
posteriora  a  prioribus, — as  where  the  sealing  and 
delivery  of  a  deed  purporting  to  be  signed,  sealed,  and 
delivered,  are  inferred  on  proof  of  the  signing  only.  (J) 
This  is  manifestly  the  reverse  of  the  former,  and  as  a 
general  rule  the  presumption  is  much  weaker,  (u)     3. 

(r)  3  Benth.  Jud.  Ev.  213.  prior  events   with  regard  to  posterior 

{s)  See  infra,  sub-sect.  5.  ones.     In  all  human  affairs,  execution 

(/)  Infra,  §  362.  is  better  evidence  of  design   than   de- 

(«)  "  The    probative   force   of  pos-  sign  of  execution.      Why?      Because 

terior  events  in  regard  to  prior  ones  is  human  designs  are  so  often  frustrated." 

naturally   much   stronger  than  that  of  3  Benth.  Jud.  Ev.  213,  215,  216. 

1  The  principle  has  been  held  in  the  United  States  to  ap- 
ply only  when  jurisdiction  is  clearly  vested.  Allen  v.  Sower- 
by,  37  Md.  410  ;  Pittsburgh  v.  Walter,  69  Pa.  St.,  365  ;  and  see 
Hicks  v.  Haywood,  4  Heisk.  59S  ;  Markham  v.  Boyd,  22 
Gratt.  544;  Buchannan  v.  King,  Id.  414. 


PRESUMPTIVE    EVIDENCE.  631 

Where  intermediate  proceedings  are  presumed, — "  pro- 
batis  extremis,  prsesumuntur  media,"  (x) — as  where 
livery  of  seisin  is  presumed  on  proof  of  a  feoffment 
and  twenty  years'  enjoyment  under  it ;  (y)  or  where 
a  jury  are  directed  to  presume  mesne  assignments,  (z) 

355.  The  real  nature  and  extent  of  this  principle 
will  be  best  understood  by  the  examination  of  decided 
cases,  in  which  it  has  been  recognized  and  acted  on  by 
the  courts,  and  of  others  where  it  has  been  held  not  to 
apply.  With  this  view  it  is  proposed  to  consider  it 
with  reference, first,  to  official  appointments;  secondly, 
to  official  acts;  thirdly,  to  judicial  acts;  fourthly,  to 
extra-judicial  acts.  The  application  of  this  maxim  in 
support  of  possession  and  user,  especially  where  there 
has  been  long  and  peaceable  enjoyment,  will  from  its 
importance, be  reserved  for  separate  consideration,  (a) 

356.  1.  With  respect  to  official  appointments.  It 
s  a  general  principle,  that  a  person's  acting  in  a  public 
;-apacity  is  prima  facie  evidence  of  his  having  been  duly 
authorized  so  to  do  ;  (p)  1  and,  even  though  the  office 
be  one  the  appointment  to  which  must  have  been  in 
writing,  it  is  not,  at  least  in  the  first  instance,  necessary 
to  produce  the  document  or  account  for  its  non-pro- 
duction. (V)  There  are  numerous  instances  to  be 
found  of  the  application  of  this  principle.     It  has  been 

(x)  1  Greenl.    Ev.   §   20,  7th  Ed.  ;  Bl.  1228  ;  White  v.  Foljambe,  11  Ves. 

White  v.  Foljambe,  11  Ves.  337,  350.  350. 

(jl-)  Doe  d.   Wilkins  v.    Marquis   of  (a)  Infra,  sub-sect.  5. 

Cleveland,  9  B.  &  C.    864  ;  Rees  d  {b)  Ph.  &  Am.    Ev.   452  ;    I   Phil. 

Chamberlain  v.   Lloyd,  Wightw.  123  ;  Ev.  449, 10th  Ed.  ;  Berryman  v.  Wise, 

Isack  v.  Clarke,   1   Ro.   132  ;  Doe  d.  4  T.  R.  366  ;  M'Gahey  v.  Alston,  a 

Lewis  v.  Davies,  2  M.  &  W.  503.  M.  &  W.  206. 

(:)  Earl  d.  Goodwin  v.  Baxter,  2  W.  (c)  Ph.   &  Am.  Ev.  452-3;  1    Thill. 

Ev.  449,  10th  Ed. 

'Rowan  v.  Lamb,  4  Greene  (Iowa)  46S;  Shelbyville  v 
Shelbyville,  1  Mete.  (Ky.)  54  ;  Landry  v.  Martin,  15  La.  An 
1  ;  and  cases  cited  in  note  1,  p.  622. 


632      SECONDARY    RULES    OF    EVIDENCE. 

held  to  apply  to  justices  of  the  peace,  (d)  church- 
wardens and  overseers,  (e)  masters  in  chancery,  (/) 
surrogates,  (g)  commissioners  for  taking  affidavits,  (k)  l 
attorneys,  (z)  under-sheriffs,  (/)  replevin  clerks,  (k) 
peace  officers  and  constables,  (/)  persons  in  the  em- 
ployment  of  the  Post-office,  (m)  vestry  clerks,  (n)  at- 
tested soldiers  under  the  Mutiny  Act,  (o)  &c. ;  and  it 
has  been  expressly  extended  by  statute  to  revenue 
officers.  (/)  And  it  holds  in  criminal  cases  as  well  as 
in  civil.  A  strong  illustration  is  to  be  found  in  R.  v. 
Winifred  and  Thomas  Gordon,  (q)  who  were  indicted 
for  the  murder  of  a  constable  in  the  execution  of  his 

(d)  Berryman  v.  Wise,  4  T.  R.  3°6-  W  R-  v-  Gorden,  Leach,  C   L.  515 

(e)  Doe  d.  Bow  ley  v.  Barnes,  8  Q.  B.      Berryman  v.   Wise,  4  T.  R.   366,  per 
1037.  Buller,  J. 

(/)  Marshall  v.  Lamb,  5  Q.  B.  115.  (»')  R-  v.  Rees,  6  C.  &  P.  606. 

\g)  R.  v.  Verelst,  3  Camp.  432.  («)  M'Gahey  v.  Alston,  2  M.  &  W. 

(A)  R.  v.  James,  :   Show.  397  ;  R.  206. 

v.  Howard,  1  M.  &  Rob.  187.  (o)  Wrotton  v.  Gavin,  16  Q.  B.  48. 

(£)  Pearce  v.   Whale,  5  B.  &  C.    38.  (/)  26  Geo.  3,  c.  77,  s.  12,  and  c.  82, 

(_/*)  Doe  d.  James  v.  Brawn,  5  B.  &  s.  6  ;  11  Geo.  1,  c.  30,  s.  32  ;  7  &   8 

A.  243.  Geo.  4,  c.  53,  s.  17;  16  &  17  Vict.   c. 

(£)  Faulkner  v.  Johnson,   11  M.   &  107,  s.  307. 

W.  581.  (?)  Leach,  C.  L.  515,  4th  Ed 

1  Where  a  registry  copy  of  a  deed,  recorded  more  than  one 
hundred  years  before,  was  produced  in  evidence,  it  appeared 
that  the  deed  purported  to  have  been  acknowledged  before  a 
justice  of  the  peace  of  another  state.  Held,  that  in  the  absence 
of  evidence  to  the  contrary,  the  presumption  was  that  the  re- 
gister who  recorded  the  deed,  had  sufficient  evidence,  at  the 
time  of  record,  of  the  official  character  of  the  magistrate; 
Forsaith  v.  Clark,  21  X.  II.  (1  Fost.)  409;  and  so  even  though 
a  clerk  of  the  United  States  courts  has  no  authority  to  ad- 
minister oaths  out  of  court  (but  ample  authority  coram  judice), 
the  jurats  attached  to  a  petition  and  schedules  of  a  bankrupt 
will  be  taken  to  have  been  verified  in  court,  if  not  proved  to 
be  otherwise.  Schermerhorn  v.  Talman,  14  X.  Y.  (4  Kern.)  93. 
A  1  nrach  of  law  can  not  be  presumed,  but  the  presumption 
is  that  every  person  has  conformed  to  the  law,  until  the  con- 
trarv  appear  by  proof,  the  burden  of  which  is  upon  him  who 
alleges  it.      Iloran  v.  YVeilcr,  41  Pa.  St.  470. 


PRESUMPTIVE    EVIDENCE.  633 

office,  and  where  the  allegation  in  the  indictment  of 
hi?  being  constable,  was  held  sufficiently  proved  by 
evidence  that  he  acted  and  was  generally  known  in 
the  parish  as  such.  Both  prisoners  were  convicted 
and  Thomas  Gordon  executed,  but  the  female  prisoner 
escaped  on  another  point. 

357.  This  presumption  is  not  restricted  to  appoint- 
ments of  a  strictly  public  nature.  It  has  been  held  to 
apply  to  constables  and  watchmen  appointed  by  com- 
missioners under  a  local  act,  (r)  and  to  trustees  em- 
powered by  act  of  parliament  to  raise  money  to  build 
a  church,  (s)  But  it  does  not,  at  least  in  general,  hold 
in  the  case  of  private  individuals,  or  agents  supposed 
to  be  acting  by  their  authority.  Thus  it  does  not 
apply  to  an  executor  or  administrator,  (J)  or  a  tithe- 
collector  acting  under  the  authority  of  a  private 
person  ;  &c.  (11) 

358.  This  presumption  of  the  due  appointment 
of  public  officers  seems  to  rest  on  three  grounds  :  (v) 
1.  A  principle  of  public  policy.  2.  In  some  degree 
on  the  ground,  that  in  many  cases,  not  to  make  it 
would  be  to  presume  that  the  party  acting  had  been 
guilty  of  a  breach  of  the  law.  3.  That  in  the  case 
of  public  appointments,  there  are  facilities  for  dis- 
proving the  regularity  of  the  appointment  which 
do  not  exist  in  the  case  of  the  agents  of  private  in- 
dividuals. 


(r)  Butler  v.  Ford,  I  Cr.  &  M.  662.  were  bound,  in  pleading,  to  make  pro- 

(s)  R.  v.  Murphy,  8  C.  &  P.  310,  per  fert    of  the  probate,  or  letters   of  ad- 

Coleridge,  J.     The  acts  of  Parliament  ministration.     1  Chit.  PL  420,  6th  Ed. 

in  that  case,  namely,  the  56  Geo.  3,  c.  («)  Short  v.  Lee,  2  jac.  &  W.  468. 

xxix.,  and    1  &   2   Geo.   4,  c.  xxiv.,  are  {v)  Many  of  the   cases  in  the  books 

stated  in  the  report  to  be  private  acts,  rest    on    a    totally    distinct     ground, 

but  it  appears  that  they  contain  clauses  namely,  that    the   party  against  whom 

declaring  them  public  acts.  the    evidence    was    offered    had,    by 

(/)  Previous   to  15    &  16  Vict.  c.  76,  words  or  acts,  admitted  the  character 

8.    55,    executors    and    administrators  of  the  person  described   as  an  officer 


634     SECONDARY    RULES     OF    EVIDENCE. 

359.  2.  The  maxim,  "  Omnia  praesumuntur  rite 
esse  acta,"  holds  in  many  cases  where  acts  are  required 
to  be  done  by  official  persons,  or  with  their  concur- 
rence. Thus  where,  on  the  face  of  a  composition 
deed  executed  under  the  bankruptcy  act,  1861,  (w) 
there  was  a  written  memorandum  stating,  amongst 
other  things  required  by  the  act,  that  the  deed  had 
been  duly  registered  pursuant  to  the  provisions 
thereof;  this  was  held  to  be  prima  facie  evidence  that 
an  affidavit,  containing  certain  particulars  prescribed 
by  the  act  was,  in  pursuance  thereof,  delivered  to  the 
registrar  together  with  the  deed,  (x)  So  the  courts 
will  presume  in  favor  of  a  return  to  a  mandamus;  (jj/) 
and  where  a  parish  certificate,  which  appeared  to  have 
been  signed  by  only  one  churchwarden,  had  been 
allowed  by  two  justices  of  the  peace,  a  custom  was 
presumed,  for  the  parish  to  have  only  one  church- 
warden. (2)  And  Lord  Kenyon  laid  it  down,  that 
everything  is  to  be  intended  in  support  of  orders  of 
justices,  as  contradistinguished  to  convictions,  (a) 
This  must  not,  however,  be  understood  to  mean  that 
presumptions  will  be  made  inconsistent  with  the  man- 
ifest probabilities  of  the  case.  (6) 

360.  3.  We  next  come  to  the  consideration  of 
judicial  acts.  These,  from  their  very  nature,  are 
in  general  susceptible  of  more  regular  proof;  so  that 
the  maxim,  "Omnia  praesumuntur  rite  esse  acta,"  has 
here  a  much  more  limited  application.  "With  respect 
to  the  general  principle  of  presuming  a  regularity  of 

(w)  24  &  25  Vict.  c.  134,  s.  192.  See  also  R   v.  Hinkley,  12  East,  361 

(x)  Waddington  v.  Roberts,  L.  Rep.,  and  R.  v.  Bestland,  1  Wils.  128. 
3  Q.  B.    579.      And   see   Grindell    v.  (a)  R.  v.  Morris,  4  T.  R.  552.     Sea 

Brendon,  6  C.  B.,  N.  S.  698.  also  R.  v.  Stockton,  5  B.  &  Ad.  546. 

(v)  Per  Buller,  J.,  in  R.  v.  Lyme         (6)  R.  v.  Upton   Gray,  10  B.  &  G 

Regis,  1  Dougl.  159.  807. 

(2)  R.  v.  Catesby,  2   B.  &  C.  814. 


PRESUMPTIVE    EVIDENCE.  635 

procedure,"  says  Sir  W.  D.  Evans,  "  it  may  perhaps 
appear  to  be  the  true  conclusion,  that  wherever  acts 
are  apparently  regular  and  proper,  they  ought  not  to  be 
defeated  by  the  mere  suggestion  of  a  possible  irregu- 
larity.1 This  principle,  however,  ought  not  to  be 
carried  too  far,  and  it  is  not  desirable  to  rest  upon  a 
mere  presumption  that  things  were  properly  done, 
when  the  nature  of  the  case  will  admit  of  positive 
evidence  of  the  fact,  provided  it  really  exists."  (c)  It  is 
a  principle  that  irregularity  will  not  be  presumed  ;  {d)  2 
and  there  are  several  instances  to  be  found  in  the 
books,  of  the  courts  dispensing  with  formal  proof  of 
things  necessary  in  strictness  to  give  validity  to 
judicial  acts.  Thus,  a  fine  was  presumed  to  have  been 
levied  with  proclamation  (e)  even  before  1 1  &  1 2 
Vict.  c.  70  ;  and  where  a  recovery  has  been  suffered 
by  a  person  who  had  power  to  do  so,  the  maxim, 
"  Omnia  prsesumuntur  rite  esse  acta,"  applies,  until  the 
contrary  appears,  (y)  So  it  is  a  rule,  never  to  raise  a 
presumption  for  the  sake  of  overturning  an  award,3  but, 

(c)  2  Ev.  Poth.  336.  3  M.  &  W.  68  ;   James  v.  Heward,  3 

(d)  Macnam.  Null,  and  Irregul.  42  ;      G.  &  Dav.  264. 
per  Alderson,  B.,  in  Caunce  v.  Rigby,  (e)  3  Co.  86b. 

(/)  3  Stark.  Ev.  961,  3rd  Ed. 

1  Where  proceedings  are  in  the  course  of  the  ordinary 
jurisdiction  of  the  court,  as  a  court  of  law  or  a  court  of 
equity,  many  things  may  be  presumed  which  do  not  appeal 
upon  the  record,  and  evidence  will  not  be  permitted  to  contra- 
dict the  presumptions  arising  from  the  acts  of  the  court.  Tolmie 
v.  Thompson,  3  Cranch  C.  Ct.  123. 

a  An  inferior  court  will  be  presumed  to  have  acted  correctly 
upon  a  subject-matter  within  its  jurisdiction.  M'Grewsv. 
M'Grews,  1  Stew.  &  P.  (Ala.)  30;  Outlaw  v.  Davis,  27  111. 
467;  Tharp  v.  Commonwealth,  3  Mete.  (Ky.)  411;  Slate  v. 
Farish,  23  Miss.  483;  Merritt  v.  Baldwin,  6  Wis.  439  ;  Redmond 
v.  Anderson,  18  Ark.  449. 

s  And  so  where  a  license  has  been  granted,  it  will  be  pre 
snmed  that  the  court  had  evidence  before  them  to  justify  them 
in  granting  it.     Commonwealth  v.  Bolkom,  3  Pick.  281. 


636     SECONDARY    RULES    OF    EVIDENCE. 

on  the  contrary,  to  make  every  reasonable  intendment 
in  its  support;  ( g)  although  there  are  cases  in  the 
books  which  it  might  be  difficult  to  reconcile  with 
this  principle. 

361.  The  maxim  "Omnia  praesumuntur  rite  esse 
acta  "  does  not  apply  to  give  jurisdiction  to  magistrates 
or  other  inferior  tribunals.  (Ji)  Thus,  where  a  powei 
was  given  to  justices  of  the  peace  under  a  mutiny  act, 
to  take  the  examination  of  a  soldier  quartered  at  the 
place  where  the  examination  was  taken  ;  and  the  ex- 
amination, when  taken,  did  not  show  on  the  face  of  it 
that  the  soldier  was  quartered  at  that  place  ;  the  Court 
of  Queen's  Bench  held  the  examination  not  to  be  re- 
ceivable for  the  purpose  of  proving  a  settlement,  unless 
it  were  shown  by  evidence,  that  the  soldier  was  so 
quartered  at  the  time,  (z)  : 

362.  4.  We  next  proceed  to  consider  the  applica- 
tion of  this  maxim  to  extra-judicial  acts,  such  as  writ- 
ten instruments,  and  matters  in  pais.  Thus,  it  is  an 
established  rule  that  deeds,  wills,  and  other  attested 
documents,  which  are  thirty  years  old  or  upwards,  and 

(g)  Caldwell,  Arbitr.  132,  2nd  Ed.  ;  Dempster  v.   Purnell,  4  Scott,   N.  R. 

Watson,  Aw.  175,  176,  3rd  Ed.  ;  Rus-  30;  Anon.,  1    I!.  &  Ad.  3S6,  note;  R. 

sell,   Arbitr.    26S,   6S1,   3rd    Ed.;     3  v.  Totness,  11  Q.  B.  80  ;  R.  v.  Blooms- 

Bulst.  66-7.  bury,  4  E.  &  B.  520. 

(/;)  R.  v.  Hulcott,  6  T.  R.  5S3  ;  R.  (i )  R.  v.  All  Saints',   Southampton, 

v.  All  Saints',  Southampton,  7  B.  &  C.  7  B.  &  C.  785. 
7S5  ;    Carratt  v.   Morley,  I  Q.  B.  18  ; 

1  The  strictness  with  which  the  proceedings  of  inferior 
tribunals  are  scrutinized,  applies  only  to  the  question  of  juris- 
diction. When  that  is  established,  the  maxim  "  omnia  praesu- 
muntur,"  &c,  applies  to  them  as  well  as  to  courts  of  general 
jurisdiction;  State  v.  Hinchman,  27  Pa.  St.  479.  So  a  justice 
jf  the  peace  will  be  presumed  to  have  acted  within  his  juris- 
diction, although  his  entry  of  judgment  is  so  made  that  its 
terms  arc  applicable  to  a  case  in  which  he  had  no  jurisdiction, 
as  well  as  to  one  which  he  had.  Bumpus  v.  Fisher.  21  Tex. 
561 


PRESUMPTIVE    EVIDENCE.  637 

are  produced  from  an  unsuspected  repository,  prove 
themselves ;  although  it  is  still  competent  to  the  op- 
posite party,  to  call  witnesses  to  disprove  the  regularity 
of  the  execution.  (Jz)  And  there  are  many  instances 
of  the  application  of  this  presumption,  even  where  it 
is  strictly  necessary  to  prove  the  execution  of  an  at- 
tested instrument.  Thus,  where  a  deed  is  produced, 
purporting  to  have  been  executed  in  due  form  by 
signing,  sealing,  and  delivery,  but  the  attesting  wit- 
nesses can  only  speak  to  the  fact  of  signing,  it  may  be 
properly  left  to  the  jury  to  presume  a  sealing  and  de- 
livery. (/)  So,  where  an  agreement  is  stated  to  have 
been  reduced  to  writing,  signing  will  be  pre- 
sumed. (?/z)  ' 

363.  The  7  Will.  4  &  1  Vict.  c.  26,  s.  9  (explained 
by  15  &  16  Vict.  c.  24),  requires  wills  to  be  in  writing 
and  executed  with  certain  formalities ;  and  somewhat 
similar  provisions,  with  reference  to  wills  of  real  estate, 
were  contained  in  the  statute  previously  in  force,  the 
29  Car.   2,  c.  3,  s.  5.  (;z)     Under   both    statutes   the 

(k)  2  Phill.  Ev.  245  ei  seq.  ioth    Ed.      Grellier  v.  Neale,  I  Peake,  146  ;   Tal- 
Vide  supra,  bk.  2,  pt.  3,  chap.  I,  §§      bot  v.  Hodson,  7  Taunt.  251. 
220-1.  (m)  Rist   v.    Hobson,    1    Sim.  &  S. 

(/)  Burling  v.    Paterson,  9  C.  &  P.      543. 
570;  Ball  v.  Taylor,    1    C.  &  P.  417  ;  (»)  Supra,    bk.    2,   pt.    3,    chap.  I 

§  222. 

1  So  the  law  presumes  that  an  instrument  was  executed  the 
day  it  bears  date,  but  parol  testimony  is  admissible  to  show 
that  it  was  in  fact  executed  on  a  different  day;  Abram-s  v. 
Pomeroy,  13  111.  133  ;  Meldrum  v.  Clarke,  1  Morr.  (Iowa)  130; 
Breck  v.  Cole,  4  Sandf.  (N.  Y.)  79;  Dodge  v.  Hopkins,  14  Wis. 
630  ;  but  the  party  alleging  an  alteration  of  a  written  instru- 
ment has  the  burden  of  proof  upon  him  to  show  the  alteration 
Davis  v.  Jenney,  1  Mete.  (Ky.)  221  ;  and  where  an  instrument 
is  offered  in  evidence,  in  which  an  interlineation  has  been 
made,  and  there  is  no  evidence  either  from  the  appearance  of  the 
note  or  otherwise  as  to  when  the  interlineation  was  made,  it 
will  be  presumed  to  have  been  subsequent  to  the  execution  of 
the  instrument.     Walters  v.  Short,  10  111.  (5  Gilm.)  252. 


63S      SECONDARY    RULES     OF    EVIDENCE. 

courts  have,  in  many  instances,  applied  the  maxim 
"  Omnia  prsesumuntur  rite  esse  acta,"  to  the  execution 
of  wills  ;  and  as  a  general  principle,  they  lean  in  favor 
of  a  fair  will,  so  as  not  to  defeat  it  for  a  slip  in  form, 
where  the  intention  of  the  legislature  has  been  com- 
plied with,  (o) 

364.  So,  collateral  facts  requisite  to  give  validity 
to  instruments  will,  in  general,  be  presumed.  Thus, 
where  an  instrument  has  been  lost,  it  will  be  presumed 
to  have  been  duly  stamped  ;  (/)  and  where  a  party 
refuses  to  produce  a  document  after  notice,  it  will  be 
presume 1,  at  least  as  against  him,  to  have  been  duly 
stamped,  unless  the  contrary  appears.  (</)  Where  an 
ejectment  was  brought  on  the  assignment  of  a  term, 
given  by  the  defendant  to  secure  the  payment  of  an 
annuity,  it  was  held  unnecessary  for  the  plaintiff  to 
prove  that  the  annuity  had  been  enrolled  in  pursuance 
of  the  17  Geo.  3,c.  26  ;  as,  if  it  were  not  enrolled,  that 
would  more  properly  come  from  the  other  side,  (r) 
This  principle  has  also  been  extended  to  the  construc- 
tion of  instruments.  Thus,  where  deeds  bear  date  on 
the  same  day,  a  priority  of  execution  will  be  presumed, 
to  support  the  clear  intention  of  parties  ;  (s)  as,  for  in- 
stance, where  property  was  conveyed  by  lease,  and 
release,  both  of  which  were  contained  in  one  deed,  the 
presumption  was,  that  the  lease  had  been  executed 
first.  (/)  '     So,  in  construing  a  deed  or  will,  words  may 

(o)  Right,  Lessee  of  Cater  v.  Price,  7.     See  ace.  Doe  d.  Lewis  v.  Bingham 

I  Dougl.  241,  243;    Bond  v.   Seawell,  4  B.  &   A.  672  ;    and    The    Brighton 

3  Burr.  1773;    1    Jai man,  Wills,  75  et  Railway   Company    v.    Fairclough.    2 

teq.;    In  the  goods  of   Huckvale,  L.  Man.  &  G.  674. 

Rep.,  1  P.  &  D.  375.  (s)  Barker  v.  Keete,  I    Freem.  251  ; 

(p)  Supra,  §  230.  Taylor  d.   Atkyns  v.  Horde,    I   Burr. 

(q)  Id.  ;  Crisp,  v.  Anderson,  1  Stark.  106. 

35-  (/)  Per   North.    C  J.,  in   Barkei    v. 

(r)  Doe  d.  Griffin  v.  Mason,  3  Camp.  Keele,  1  Freem.  251. 

1  Abrams  v.  Pomeroy,    13    111.   133      Where  an  instrument 


PRESUMPTIVE    EVIDENCE.  639 

be  transposed,  in  order  to  carry  into  effect  the  mani- 
fest intention  of  the  parties,  (ti) 

365.  It  only  remains  to  add,  that  the  principle  in 
question  has  been  much  extended  by  modern  statutes. 
We  have  already  alluded  to  this  subject,  when  treating 
of  the  history  of  the  rise  and  progress  of  the  English 
law  of  evidence,  (v) 

(«)  Parkhurst  v.  Smith,  Willes,  327,      Richards  v.  Bluck,  6  C.  B.  441. 
532  ;     and     the    cases     there     cited;  (v)  Bk.  1,  pt.  2,  §  118. 

without  date  provides  for  the  payment  of  a  sum  of  money  on 
the  1st  of  May,  1838,  the  presumption  is  that  it  was  made  be- 
fore that  time ;  Cleavinger  v.  Reiar,  3  Watts  &  S.  (Pa.)  486. 
An  impossible  date  raises  a  presumption  of  ante  or  post  dat- 
ing; and  not  of  alteration.     Davis  v.  Loftin,  6  Tex.  489. 


64o     SECONDARY    RULES    OF    EVIDENCE. 


SUB-SECTION   V. 


PRESUMPTIONS     FROM     POSSESSION    AND    USER. 


Presumption  of  right  from  possession,  &c.  highly  favored  in  jurispru- 
dence   ............. 

Possession,  &c.  prima  facie  evidence  of  property  .... 

Presumption  strengthened  by  length  of  enjoyment,  &C.    .         .         . 

Division  of  the  subject         ......... 

I.  Presumption  from  long  user  of  rights  to  certain   things  which  lie  in 

grant      .         

Piescription  ...'...... 

Requisites  of  a  prescriptive  right  ...... 

Legal  and  living  memory  ...... 

Evidence  of  prescription  from  modern  user  .... 

Prescriptive  claim  not  defeated  by  trifling  variations  in  exer- 
cise of  the  right 

User  evidence  although  not  sufficient  to  raise  presumption  of 
prescriptive  right.       ........ 

Presumption  of  prescriptive  right  from  enjoyment,  how  put 

an  end  to 

Title  by  non-existing  grant 

As  against  the  Crown 

As  against  the  rights  of  the  public     .... 

Pews 

Inconveniences  of  the  old  law  .... 

2  &  3  Will.  4.  c.  71,  ss.  i,  2,  3,  4,  5,  6,  7,  8,  495  et  seq.  . 

Construction  of  this  statute 

2  &  3  Will.  4,  c.  100 

Has  not  taken  away  the  common  law     . 
t.  Incorporeal  rights  not  affected  by  2  &  3  Will.  4,  cc.  71  &  100    . 
Presumption  of  dedication  of  highways  to  the  public    . 
Presumption  of  surrender  or  extinguishment  of  rights  by  non-user  . 

Easements 

Licenses 

3.  Presumptions  of  facts  in  support  of  beneficial  enjoyment  .         . 

General  principle 

Instances 

Presumption  of  conveyances  by  trustees         .... 

General  rule 

Presumption  of  the  surrender  of  terms  by  trustees  for  years 
Surrender  of  terms  presumable  from  circumstances 

from  acts  of  owner  of  the  inheri 
tance,  &c  . 

8  &  9  Vict.  c.  112 

Belief  of  juries  »••••••..., 


PARAGRAPH 


366 
366 
366 

367 

368 
369 
370 

370-72 

373 
374 

375 

376 

377-8o 

38i 

381 
382 

583 
384 
38S 
386 
386 
387 
387 
388 
389-90 

391 
392 
392 
393 
394 
394 
395 
396 

397 
398 
399 


PRESUMPTIVE    EVIDENCE.  641 

366.  The  presumption  of  right  in  a  party  who  is 
in  the  possession  of  property,  or  of  that  quasi  posses- 
sion of  which  rights  only  occasionally  exerciseable  are 
susceptible,  is  highly  favored  in  every  system  of  juris- 
prudence, (w)  and  seems  to  rest,  partly  on  principles 
of  natural  justice,  and  partly  on  public  policy.  By  the 
law  of  England,  possession,  or  quasi  possession,  as  the 
case  may  be,  is  prima  facie  evidence  of  property,  (x) — ■ 
"  Melior  (potior)  est  conditio  possidentis"  ;  (y)  and  the 
possession  of  real  estate,  or  the  perception  of  the  rents 
and  profits  from  the  person  in  possession,  is  prima  facie 
evidence  of  the  highest  estate  in  that  property,  namely, 
a  seisin  in  fee.  (z)  But  the  strength  of  the  presump- 
tion, arising  from  possession  of  any  kind,  is  materially 
increased  by  the  length  of  the  time  of  enjoyment,  and 
the  absence  of  interruption  or  disturbance  from  others 
who,  supposing  it  illegal,  were  interested  in  putting  an 
end  to  it.  The  rule  is,  that  where  the  facts  show  the 
long  continued  exercise  of  a  right,  the  court  is  bound 
to  presume  a  legal  origin,  if  such  be  possible,  in  favor 
of  the  right,  (a)  And,  in  such  cases,  the  courts  have 
presumed  not  only  that  the  right  had  a  legal  origin, 
but  many  collateral  facts,  so  as  to  render  the  title  of 
the  possessor  complete, — according  to  the  maxim, 
"  Ex  diuturnitate  temporis,  omnia  prsesumuntur  solen- 
niter  esse  acta."  (J>) 

367.  In  treating  this  important  subject,  it  is  pro- 

(w)  Huberus,  Prsel.  Jur.  Civ.  lib.  22,  R.  153;  4  Id.  564- 

tit.  3,  n.  16  ;    Dig.  lib.  50,  tit.  17,  11.  (z)  B.  N.  P.  103;    Jeyne  v.  Price,  5 

126  &  128;    Cod.  lib.  4,  tit.  19,  1.  2;  Taunt.  326;  Derm  d.  Tarzwell  v.  Bar- 

Sext.   Decret.   lib.   5,   tit.  12,  De  Reg.  nard,  Cowp.  595;    Crease  v.  Barrett,  1 

Jur.,  Reg.  65  ;  Co.  Litt.  6b.  C.   M.   &   R.  931;    R.  v.  Overseers  of 

(x)  Ph.  &  Am.  Ev.  472  ;    1   Ph.  Ev.  Birmingham,  1  B.  &  S.  763.  768,  77°, 

484,  10th  Ed.;  4  Taunt.  547  ;  2  Wms.  Metters  v.  Brown,  1  H.  &  C  6S6,  692 

Saund.  47f,  6th  Ed.  (a)  Johnson  v.  Barnes,  L.  R.,  7  C  P. 

(y)  2  Inst.  391  ;  4  Id.  180 ;   Plowd.  592;  S.  C,  in  Cam.  Scac.,  8  Id.  527. 

296 ;  Hob.  103,  199;  Vaugh.  60;  1  T.  (b)  Co.  Litt.  6b;  Jenk.  Cent.   4  Cas. 
41 


642      SECONDARY    RULES    OF    EVIDENCE. 

posed  to  consider,  ist,  The  presumption  from  long 
user,  of  prescriptive  and  other  rights,  to  things  which 
lie  in  grant,  both  at  common  law,  and  as  affected  by 
the  statutes  2  &  3  Will.  4,  cc.  71,  and  100.  2ndly,  In- 
corporeal rights  not  affected  by  those  statutes.  3rdly, 
Presumptions  of  facts  in  support  of  beneficial  en- 
joyment. 

368.  Among  the  various  ways  in  which  a  title  to 
property  can  be  acquired,  most  systems  of  jurispru- 
dence recognize  that  of  "  prescription,"  or  undisturbed 
possession  or  user  for  a  period  of  time,  longer  or 
shorter  as  fixed  by  law.  (/)  '     "  Prsescriptio  est  titulus 

77;  Palm.  427.  This  maxim  is  clearly  posterioribus.  See  supra,  sub-sect.  4, 
a  case  where  priora   praesumuntur  a      §  354. 

(c)  Introd.  Part  2,  §  43. 

1  But  this  title  by  possession  is  never  to  be  presumed  ;  it 
must  be  actually  proved  to  rebut  a  prior  title;  Rochell  v. 
Holmes,  2  Bay  (S.  C.)  487.  Although  all  reconcilable  in  prin- 
ciple, the  enunciations  upon  this  subject  are  not  always  uni- 
form in  detail — subjoined  are  a  few  of  the  different  forms  in 
which  we  find  the  rule  treated  : 

In  order  to  quiet  titles  aftsr  a  great  lapse  of  time,  presump- 
tions will  sometimes  be  made  against  the  known  facts  of  a 
case.     Riddlehoner  v.  Kinard,  1  Hill  (S.  C.)  Ch.  376. 

A  party  who  destroys  the  evidence  by  which  his  claim  or 
title  may  be  impeached,  raises  a  strong,  though  not  conclusive, 
presumption  against  the  validity  of  his  claim.  Thompson 
v.  Thompson,  9  Ind.  323. 

It  is  for  the  party  who  sets  up  a  title  to  produce  the  evidence 
necessary  to  support  it.  If  the  validity  of  a  deed  depends  on  an 
act  in  pais,  the  party  claiming  under  the  deed  is  as  much 
bound  to  prove  the  performance  of  the  act,  as  to  prove  any 
matter  of  record  on  which  its  validity  might  depend.  Williams 
v.  Peyton,  4  Wheat.  77. 

From  very  long  possession  of  the  land,  the  payment 
es,  &c,  the  jury  may  presume  a  conveyance;  Cheeney 
v.  Watkins,  1  Har.  &  J.  (Md.)  527  ;  but  a  title  can  not  be  pre- 
sumed to  have  been  perfected,  where  deeds  showing  a  defec- 
tive title  are  produced.  Owings  v.  Norwood,  2  Har.  &  J. 
(Md.)  96. 


PRESUMPTIVE    EVIDENCE.  643 

ex  usu  et  tempore,  substantiam  capiens  ab  authoritate 
leg  is."  (V)  According  to  the  common  law  of  Eng- 
land, this  species  of  title  can  not  be  made  to  land  or 

{d)  Co.  Litt.  113a. 

The  burden  of  proof  is  on  the  purchaser  to  show  loss  01 
waiver  of  a  vendor's  lien.     Hays  v.  Horine,  12  Iowa,  61. 

An  executory  contract  for  land,  with  twenty  years'  posses- 
sion, being  shown,  the  presumption  of  a  legal  conveyance  may 
be  rebutted  by  evidence  tending  to  the  contrary  conclusion. 
Chiles  v.  Conley,  2  Dana  (Ky.)  21. 

After  a  possession  of  fifty  years,  under  a  deed  made  by  an 
agent,  it  will  be  presumed  that  the  agent  was  authorized  to 
execute  the  deed.     Jarboe  v.  McAtee,  7  B.  Mon.  279. 

Where  plats  on  file  in  a  commissioner's  office  correspond 
substantially  with  the  description  of  land  in  a  certificate  of 
confirmation,  it  will  be  presumed  that  the  confirmation  was 
made  in  reference  to  them.     Beatty  v.  Michon,  9  La.  Ann.  102. 

Where  a  widow  had  held  a  parcel  of  her  husband's  estate 
for  nearly  thirty  years,  under  a  deed  in  fee  from  one  of  the 
heirs, — Held,  that  in  an  action  by  another  of  the  heirs  for  an 
undivided  portion  of  the  same  land,  it  could  not  be  presumed, 
against  the  deed  under  which  she  had  entered  and  claimed, 
that  she  held  as  tenant,  in  dower.  Hale  v.  Portland,  4  Me.  (4 
Greenl.)  77. 

It  is  presumed,  where  the  lots  of  lands  in  each  range,  in  a 
new  township,  are  numbered  in  a  regular  arithmetical  series, 
that  they  were  originally  located  contiguous  to  each  other, 
and  that  a  lot  numbered  two,  includes  all  the  land  lying  be- 
tween one  and  three  in  the  same  range  ;  and  so  of  the  others. 
Warren  v.  Pierce,  6  Me.  (6  Greenl.)  9. 

Ancients  deeds  of  lands,  of  which  the  grantee  has  entered 
into  possession,  are  to  be  upheld,  although  defective  in  form 
or  execution  ;  and  the  same  rule  may  be  applied  to  wills  and 
levies  of  executions,  to  a  certain  extent.     Hill  v.  Lord,  48  Me. 

S3- 

Possession   of  personal   property  with   the  consent  of  the 

true  owner  does  not  raise  a  legal  presumption  of  title  against 
such  owner.     lb. 

Possession  of  land  is  evidence  of  title,  to  be  left  to  a  jury. 
Wendell  v.  Blanchard,  2  N.  H. 

It  is  not  true  in  all  cases  that  a  man  claiming  to  own  land 
is  bound  to  kn^w  the  state  of  his  own  title.  Davis  v.  Davis, 
•76  Cal.  23. 


644      SECONDARY    RULES    OF    EVIDENCE. 

corporeal  hereditaments,  (e)  or  to  such  incorporeal 
rights  as  must  arise  by  matter  of  record  ;  (/)  and  it  is 
in  general  restricted  to  things  which  may  be  created 
by  grant,  (g)  such  as  rights  of  common,  easements, 
franchises  which  can  be  created  by  grant  without  rec- 
ord, eScc.  The  reason  for  this  is  said  to  be,  that  every 
prescription  supposes  a  grant,  or  some  equivalent  doc- 
ument, to  have  once  existed,  and  to  have  been  lost  by 
lapse  of  time,  (/i)  According  to  some  eminent  au- 
thorities, no  claim  by  prescription  could  be  made  at 
the  common  law  against  the  Crown,  (V)  on  the  prin- 
ciple "  nullum  tempus  occurit  regi." 

(<?)  Dr.  &  Stud.  Dial,  i,  c.  8;   Finch,  (g )  2  Blackst.Comm.  265;  3  Cruise's 

Comm.    Laws,  31;  Yin.  Abr.  Tresc.  B.  Dig.  423,  4th  Ed.;  1  Vent.  387. 

pi.  2;  Brooke,  Abr.  Presc.  pi.  19;  Wil-  (h)  2  Blackst,  Comm.  265;  Butl.  Co. 

kinson  v.  Proud,  II  M.  &  W.  33.     A  Litt.  261a,  note  (1);  Potter  v.  North,  1 

man   may,  however,  prescribe   to  hold  Ventr.  387.   13  Hen.  VII.  16  B.  pi.  14. 

land   as  tenant   in   common  with   an-  (i)  2  Ro.  Abr.  264,  Prescription,  C; 

other.     (Littleton,  sect.  310;    Brooke,  Com.  Dig.  Praesc.  F.  1;  Plowd.  243;  38 

Abr.  in  loc.  cit.  and  Trespass,  122.)  Ass.  pi.  22.    See,  however,  Plowd.  322; 

(/)  Co.  Litt.   114a;    5    Co.    109b;  Hargr.  Co.  Litt.  119a,  note  (1);  114  b; 

Com.  Dig.  Franchises,  A.  2.  2  Inst.  16S.     It  is  difficult  to  see  the 

That  a  party  has  been  a  long  while  in  possession  of  land 
never  sold  for  taxes,  affords  a  presumption  that  he  has  complied 
with  a  convenant  to  pay  certain  old  taxes.  Newson  v.  Davis, 
20  Tex.  419. 

Length  of  time  may  properly  induce  a  jury  to  presume  a 
grant  in  support  of  a  possession,  which  presumption  may  be 
1  pelled  or  accounted  for.  Hurst  v.  M'Neil,  1  Wash.  70.  S. 
P.  Jefferson  County  v.  Ferguson,  13  111.  t,Z\  Farrar  v.  Merrill, 
1  Me.  (1  Greenl.)  17. 

The  presumption  of  a  grant  arising  from  long  possession, 
is  repelled  and  destroyed  by  production  of  proof  of  the 
contents  of  an  instrument  under  which  the  possession  was 
held;  Nieto  v.  Carpenter,  21  Cal.  455;  and  see  ante,  p.  574, 
note  1,  as  to  certain  circumstances  under  which  a  deed  will 
be  presumed.  It  seems  that  the  law  never  presumes  the  exist- 
ence of  a  will  in  the  absence  of  proof;  nor,  after  its  existence 
has  been  proved,  will  it  presume  that  it  embraced  the  real  as 
well  as  the  personal  property  of  the  testator.  Duke  of  Cum- 
berland v.  Graves,  9  Barb.  (N.  Y.)  595. 


PRESUMPTIVE    EVIDENCE.  645 

369.  Customary  rights  differ  from  prescriptive  in 
this,  that  the  former  are  usages  applicable  to  a  district 
or  number  of  persons,  while  the  latter  are  rights 
claimed  by  one  or  more  individuals,  or  by  a  corpora- 
tion, (Ji)  as  existing  either  in  themselves  and  their  an- 
cestors or  predecessors,  or  as  annexed  to  particular 
property.  (/)  The  latter  is  called  prescribing  in  a 
que  estate,  or,  in  other  words,  laying  the  prescription 
in  the  party  and  those  whose  estate  he  has.  And 
here  it  is  necessary  to  observe  that,  at  the  common 
law,  every  prescription  must  have  been  laid  in  the 
tenant  of  the  fee  simple  ;  and  that  parties  holding  any 
inferior  interest  in  the  land  could  not  prescribe,  by 
reason  of  the  imbecility  of  their  estates  ;  but  were 
obliged  to  prescribe  under  cover  of  the  tenant  in  fee, 
by  alleging  his  immemorial  right  to  the  subject-matter 
of  the  claim,  and  deducing  their  own  title  from 
him.  {iii)  l 

370.  A  prescriptive  or  customary  right,  in  order 
to  be  valid,  must  have  existed  undisturbed  from  time 
immemorial  ;  (11)  by  which,  at  the  common  law,  was 
meant,  as  the  words  imply,  that  no  evidence,  verbal  or 
written,  could  be  adduced  of  any  time  when  the  right 
was  not  in  existence  ;  (0)  and  the  right  was  pleaded, 
bv  alleging-  it  to  have  existed  "  from  time  whereof  the 
memory  of  man  runneth  not    to    the   contrary."  (p) 

reason  of  this,  if  it  be   true,  as  stated  (k)  Co.  Litt.    113b;    4   Co.  32a;   3 

in  most  of  the  books,  that  every  pre-  Cruise's  Dig.  422,  4th  Ed. 

scription   presupposes   a  grant   before  (/)  Co.  Litt.  113b,  I2ia  ;    2  Blackst. 

the  time  of  legal  memory  (see  the  pre-  Comm.  265. 

ceding   note);    and   it   is   well    known  (m)  2  Blackst.  Comm.  264,  265. 

that  a  grant  within   the  time  of  legal  (»)  I  Blackst.  Comm.  76  ;  Litt.  sect. 

memory  may  be  presumed  against  the  170. 

Crown.     {Infra)     The  maxim    "nul-  (p)  Co.  Litt.  115a;  Litt.  sect.  170. 

lum  tempus  occurrit   regi"  was  modi-  (p)  Litt.  sect.  170  ;    2  Ro.  Abr.  26^ 

fied  by  9  Geo.  3,  c.  16,  and  32  Geo.  3,  Prescrip.  M.  pi.  16. 

c.  58,  and  other  modern  statues. 

1  But  see  G1riss  v.  Gilbert,  58  Pa.  St.  266. 


646    SECONDARY    RULES    OF    EVIDENCE. 

But  when  the  stat.  West.  1  (3  Edw.  I.),  c.  39,  had 
fixed  a  time  of  limitation  in  the  highest  real  actions 
known  to  the  law,  it  was  considered  unreasonable  to 
allow  a  longer  time  in  claims  by  prescription.  Ac- 
cordingly, by  an  equitable  construction  of  that  statute, 
a  period  of  legal  memory  was  established — in  contra- 
distinction to  that  of  living  memory — by  which  every 
prescriptive  claim  was  deemed  indefeasible,  if  it  had 
existed  from  the  first  day  of  the  reign  of  Richard  I. 
(a.  i).  1 189)  ;  ((/)  and,  on  the  other  hand,  to  be  at  once 
at  an  end  if  shown  to  have  had  its  commencement 
since  that  period,  (r) 

371.  After  the  time  of  limitation  had  been  further 
reduced  to  sixty  years  by  32  Hen.  9,c.  2,  and  in  many 
cases,  including  the  action  of  ejectment,  to  twenty 
years  by  21  Jac.  1,  c.  16,  it  might  have  been  expected 
that,  by  a  similar  equitable  construction,  the  time  of 
prescription  would  have  been  proportionably  short- 
ened. This,  however,  was  not  done,  and  it  remained 
as  before.  (Y)  But  the  stat.  32  Hen.  8,  c.  2,  affected 
the  subject,  in  this  way,  that  whereas,  previously,  a 
man  might  have  prescribed  for  a  right,  the  enjoyment 
of  which  had  been  suspended  for  an  indefinite  number 
of  years,  it  was  thereby  enacted,  that  no  person  should 
make  any  prescription  by  the  seisin  or  possession  of 
his  ancestors  or  predecessors,  unless  such  seisin  or 
possession  had  been  within  sixty  years,  next  before 
such  prescription  made. 

372.  A  prescriptive  title  once  acquired  may  be 
destroyed  by  interruption.  But  this  must  be  under- 
stood to  be  an  interruption  of  the  right,  not  simply  an 
interruption    of    the    user.  (7)     Thus    a    prescriptive 

\q)  Co.  Litt.  115a.  (s)  2  Blackst.  Comm.  31,  n.  (»);  Gale 

(r)  Id.;  2  Blackst.  Comm.  31;  2  Inst.      on  Easements,  Sq,  3rd  Ed. 
2J8;  3  Cruise's  Dig.  425,4111  Ed.  \f)  Co.  Litt.  114b;  Canham  v.  Fisk, 

2  C.  c\;  J.  120.  per  Bayley,  B. 


PRESUMPTIVE    EVIDENCE.  647 

right  may  be  lost  or  extinguished  by  an  unity  of  pos» 
session  of  the  right,  with  an  estate  in  the  land  as  high 
and  perdurable  as  that  in  the  subject-matter  of  the 
right ;  («)  as,  for  instance,  where  a  party  entitled  in  fee 
to  a  right  of  way  or  common,  becomes  seized  in  fee 
of  the  soil  to  which  it  is  attached.  But  the  taking 
any  lesser  estate  in  the  land  only  suspends  the  enjoy- 
ment of  the  subject-matter  of  the  prescription,  without 
extinguishing  the  right  to  it,  which  accordingly 
revives  on  the  determination  of  the  particular  es- 
tate, (x) 

373.  The  time  of  prescription  thus  remaining 
unaltered,  it  is  obvious  that,  if  strict  proof  were 
required  of  the  exercise  of  the  supposed  right  up  to 
the  time  of  Richard  I.,  the  difficulty  of  establishing  a 
prescriptive  claim  must  have  increased  with  each  suc- 
cessive generation.  The  mischief  was,  however,, 
considerably  lessened  by  the  rules  of  evidence 
established  by  the  courts.  Modern  possession  and 
user  being  prima  facie  evidence  of  property  and  right, 
the  judges  attached  to  them  an  artificial  weight,  and 
held  that  when  uninterrupted,  uncontradicted,  and  un- 
explained, they  constituted  proof  from  which  a  jury 
ought  to  infer  a  prescriptive  right,  coeval  with  the 
time  of  legal  memory. 

The  length  of  possession  and  user  necessary  for 
this  purpose,  depends  in  some  degree  on  circum- 
stances and  the  nature  of  the  right  claimed.  On  a 
claim  of  modus  decimandi,  where  there  is  nothing  in 
the  amount  of  the  sum  alleged  to  be  payable  in  lieu  of 
tithe,  inconsistent  with  its  having  been  an  immemorial 
payment,  the  regular  proof  should  be  payment  of  that 
amount   in   lieu    of  tithe,  by  the    parish,  township,  or 

(«)  3    Cruise's    Dig.   42s,    4U1  Ed.  ;      mitage,  Carth.  241. 
Co.  Litt.   114b  ;  4.  Co.  38a  ;    R.  Her-  (x)  3  Cruise's  Dig.  426,  4th  Ed. 


<54S      SECONDARY    RULES    OF    EVIDENCE. 

farm,  as  for  back  as  living  memory  will  reach  ;  coupled 
with  evidence  that,  during  that  period,  no  tithes  in 
kind  have  ever  been  paid  in  respect  to  that  parish, 
township,  or  farm,  (jj')  So,  generally,  in  the  case  of 
other  things  to  which  a  title  may  be  made  by  prescrip- 
tion, proof  of  enjoyment  as  far  back  as  living  memory, 
raises  a  presumption  of  enjoyment  from  the  re- 
mote era.  {£)  And  a  like  presumption  may  be 
made  from  an  uninterrupted  enjoyment  for  a  con- 
siderable number  of  years.1  "  H,"  says  Alderson, 
B.,  in  the  case  of  Jenkins  v.  Harvey,  (a)  "an  un- 
interrupted usage  of  upwards  of  seventy  years 
unanswered  by  any  evidence  to  the  contrary,  were  not 
sufficient  to  establish  a  right  like  the  present"  (z.  e.  a 
right  to  a  toll  on  all  coal  brought  into  a  port),  "there 
are  innumerable  titles  which  could  not  be  sustained." 
In  that  case — the  judge  at  nisi  prius  having  directed 
the  jury  that  he  was  not  aware  of  any  rule  of  law 
which  precluded  them  from  presuming  the  immemo- 
rial existence  of  the  right  from  the  modern  usage — 
the  Court  of  Exchequer  held  the  direction  improper ; 
and  that  the  correct  mode  of  presenting  the  point  to 
the  jury  would  have  been  that,  from  the  uninterrupted 
modern  usage,  they  should  find  the  immemorial  exis- 
tence of  the  payment,  unless  some  evidence  was  given 

(y)  Bree   v.    Beck,  I   Younge,  244  ;  (z)  First    Report   of  Real    Property 

Chapman  v.  Monson,  2  P.  Wms.  565  ;  Commissioners,  51 ;    Blewett   v.    Tre- 

Moore    v.    Bullock,    Cro.    Jac.    501 ;  gonning  3  A.  &  E.  554,  per  Littledale, 

Lynes  v.   Lett,  3  V.  &  J.  405  ;    Chap-  J.  ;  R.  v.  Carpenter,  2  Show.  48. 


man 


v.  Smith,  2  Vez.  sen.  506.  (a)  j  C.  M.  &  R.  895. 


So  no  adverse  appropriation  or  use  of  land  for  a  road 
short  of  twenty  years,  is  sufficient  in  Maine  to  raise  presump- 
tion of  a  grant,  nor  to  impose  on  a  town  the  obligation  of 
keeping  it  in  repair.  Row  ell  v.  Montville,  4  Me.  (4  Greenl.) 
27c,  and  see  Brandt  v.  Ogden,  1  Johns.  156;   Palmer  v.  Hicks, 


6  Id.  w. 


PRESUMPTIVE    EVIDENCE.  649 

to  the  contrary.  (F)  And  so  where  the  question  was 
whether  a  certain  mode  of  fishing  in  a  river  could  be 
considered  as  lawfully  in  use  at  the  time  of  the  pass- 
ing of  the  salmon  fishery  act,  1861,  (c)  by  virtue 
of  a  grant  within  the  meaning  of  sect.  12  of  that 
act :  and  there  was  evidence  that  the  mode  of  fishing 
in  question,  had  been  enjoyed  for  sixty  years  and  as 
far  back  as  living  memory  extended,  in  substantially 
the  same  manner  as  it  was  in  1861  ;  the  court  held, 
that  the  commissioners  under  the  act  might  and  ought 
to  have  found,  that  the  right  of  fishing  in  that  par- 
ticular way  did  exist,  by  grant  from  all  the  proprietors 
in  the  river  whose  interests  could  be  affected  there- 
by, (d) 

In  an  old  case  of  Bury  v.  Pope,  (e)  it  was  agreed 
by  all  the  judges,  that  a  period  of  thirty  or  forty  years 
was  insufficient  to  give  such  a  title  to  lights,  as  would 
enable  the  owner  of  the  land  to  maintain  an  action 
against  the  possessor  of  the  adjoining  soil  for  obstruct- 
ing them.  But  this  is  inconsistent  with  the  modern 
cases  of  Cross  v.  Lewis  (/")  and  R.  v.  Joliffe.  (g) 
The  latter  of  these  was  a  quo  warranto,  calling  on  the 
defendant  to  show  upon  what  authority  he  claimed  to 
exercise  the  office  of  mayor  of  the  borough  of  Peters- 
field.  The  defendant  set  up  an  immemorial  custom, 
for  the  jury  of  the  court  leet  to  present  a  fit  person  to 
be  mayor  of  the  borough,  who  presented  him,  the 
defendant  ;  to  which  the  crown  replied  an  immemo- 
rial custom,  for  the  court  leet  to  present  a  fit  person  to 
be  bailiff,  and  that  at  the  court  by  which  the  defendant 

(b)  \    C.    M.   &    R.    877;    and    see  (<■/)  Leconfield  v.  Lonsdale,  L.  Rep. 
Shephard  v.    Payne,    16   C.  B.,  N.   S.      5  C.  P.  657. 

132  ;    Lawrence  v.  Hitch,  L.  Rep.,    3  (<f)  Cro.  El.  11S. 

Q.  B.   521,   532.     Vide  supra,  sect.  I,  (/)  2  B.  &  C.  6S6. 

sub-sect.  2.  §  326.  (g)  Id.  54 

(c)  24  &  25  Vict.  c.  109. 


650      SECONDARY    RULES     OF    EVIDENCE. 

was  presented  to  be  mayor,  the  steward  nominated  the 
persons  composing  the  jury,  and  issued  his  precept  to 
the  bailiff  to  summon  them,  who  did  so  accordingly; 
whereas  by  the  law  of  the  land,  the  steward  should 
have  issued  his  precept  to  the  bailiff  to  summon  a 
jury,  and  the  particular  persons  should  have  been 
selected  by  the  bailiff  To  this  the  defendant  rejoined, 
that  from  time  immemorial  the  steward  used  to 
nominate  the  jurors  ;  and  at  the  trial  it  was  proved 
that  for  more  than  twenty  years  such  had  been  the 
practice.  This  was  not  answered  by  any  evidence  on 
the  part  of  the  crown ;  and  thereupon  Burrough,  J., 
who  tried  the  case,  told  the  jury  that  slight  evidence, 
if  uncontradicted,  became  cogent  proof;  and  a  verdict 
was  given  for  the  defendant.  A  rule  was  obtained 
for  a  new  trial,  on  the  ground  that  there  was  not 
sufficient  evidence  to  warrant  the  finding  of  the  jury ; 
and  Abbott,  C.  J.,  after  argument,  expressed  himself 
as  follows :  "  Upon  the  evidence  given,  uncontra- 
dicted, and  unexplained,  I  think  the  learned  judge  did 
right  in  telling  the  jury  that  it  was  cogent  evidence, 
upon  which  they  might  find  the  issue  in  the  affirmative. 
If  his  expression  had  gone  even  beyond  that,  and  had 
recommended  them  to  find  such  a  verdict,  I  should 
have  thought  that  the  recommendation  was  fit  and 
proper.  A  regular  usage  for  twenty  years,  not  ex- 
plained or  contradicted,  is  that  upon  which  many  pri- 
vate and  public  rights  are  held,  there  being  nothing  in 
the  usage  to  contrawne  the  public  policy."  Holroyd 
and  Best,  JJ.,  concurring,  the  rule  was  discharged. 

374.  Where  there  is  general  evidence  of  a  pre- 
scriptive claim  extending  over  a  long  time,  the  pre- 
sumption of  a  right  existing  from  time  immemorial, 
will  not  be  defeated  by  proof  of  slight,  partial,  or 
occasional  variations  in  the  exercise  or  extent  of  the 


PRESUMPTIVE    EVIDENCE.  651 

right  claimed.  This  subject  is  well  illustrated  by  the 
case  of  R.  v.  Archdall.  (]i)  In  delivering  the  judg- 
ment of  the  court  in  that  case,  Littledale,  J.,  says  :  (i) 
"  It  follows  almost  necessarily,  from  the  imperfection 
and  irregularity  of  human  nature, that  a  uniform  course 
is  not  preserved  during  a  long  period  ;  a  little  advance 
is  made  at  one  time,  a  retreat  at  another ;  something 
is  added  or  taken  away,  from  indiscretion,  or  igno- 
rance, or  through  other  causes:  and  when  by  the 
lapse  of  years  the  evidence  is  lost  which  would  ex- 
plain these  irregularities,  they  are  easily  made  the 
foundation  of  cavils  against  the  legality  of  the  whole 
practice.  So,  also,  with  regard  to  title  :  if  that  which 
has  existed  from  time  immemorial,  be  scrutinized 
with  the  same  severity  which  may  properly  be  em- 
ployed in  canvassing  a  modern  grant,  without  making 
allowance  for  the  changes  and  accidents  of  time,  no 
ancient  title  will  be  found  free  from  objection  :  that, 
indeed,  will  become  a  scource  of  weakness,  which 
ought  to  give  security  and  strength.  It  has  therefore 
always  been  the  well-established  principle  of  our  law, 
to  presume  everything  in  favor  of  long  possession  ; 
and  it  is  every  day's  practice  to  rest  upon  this  founda- 
tion, the  title  to  the  most  valuable  properties."  There 
are  several  other  cases  illustrative  of  this  principle. 
Thus  although,  in  the  case  of  a  farm  or  district  modus, 
the  occupiers  are  bound,  in  order  to  establish  the  pre- 
scription, to  show  with  reasonable  precision,  the  de- 
scription and  boundaries  of  the  lands  said  to  be  cov- 
ered by  it,  and  the  identity  of  the  lands  for  which  the 
respective  sums  in  lieu  of  tithes  have  been  paid  ;  still 
it  has  frequently  been  held  in  courts  of  equity,  that  a 
trifling  and  immaterial  variation,  in  the  evidence  as  to 
the  boundaries  of  farms  forming  part   of  a  district  of 

(A)  8  A.  &  E.  281.  (j')P.  288. 


652      SECONDARY    RULES    OF    EVIDENCE. 

considerable  extent,  when  the  greater  part  of  such 
boundaries  are  tolerably  certain,  is  not  sufficient  to  de- 
stroy the  modus  payable  in  lieu  of  the  tithes  of  land 
proved  to  be  within  such  boundaries.  (/)  So,  again, 
in  the  case  of  Bailey  v.  Appleyard,  (/£)  it  is  laid  down 
by  Coleridge,  J.,  that  a  plea  of  prescription  will  be  sup- 
ported by  proof  of  a  prescriptive  right  larger  than 
that  claimed,  but  of  such  a  nature  as  to  include  it. 
And  in  Welcome  v.  Upton,  (/)  Alderson,  B.,  asks, 
"  Would  the  claim  of  a  party  to  a  right  of  way  be  de- 
feated, by  showing  that  some  person  had  narrowed  it 
by  a  few  inches  ?  "  On  the  other  hand,  however,  a 
general  prescription  is  not  supported  by  proof  of  a  pre- 
scriptive right  coupled  with  a  condition.  {771) 

375.  Although  the  user  is  not  sufficiently  long  or 
uniform  to  raise  the  presumption  of  a  prescriptive 
right,  still  it  is  entitled  to  its  legitimate  weight  as  evi- 
dence from  which,  coupled  with  other  circumstances, 
the  jury  may  find  the  existence  of  the  right. 

376.  The  presumption  of  prescriptive  right,  de- 
rived from  enjoyment  however  ancient, is  instantly  put 
an  end  to  when  the  right  is  shown  to  have  originated 
within  the  period  of  legal  memory ;  {11)  and  it  is  of 
course  liable  to  be  rebutted  by  any  species  of  legti- 
mate  evidence,  direct  or  presumptive ;  (V)  or  even  by 
the  nature  of  the  alleged  right  itself,  which  may  make 
it  impossible  that  it  should  have  existed  from  the  time 


(/)  Bailey  v.  Sewell,  I    Russ.    239 ;  (;«)  Paddock  v.  Forrester,  3  Scott, 

Rudd     v.    Wright,    1    Vounge,     147;  N.  R.  715  ;    3   M.  &  Gr.  903,  and  the 

Rudd  v.  Champion,   Id.   173  ;  Bree  v.  cases  there  cited. 

Beck,  Id.  211.     See  Ward  v.  Pomfret,  (n)  2   Blackst.   Com.   31;     Fishery. 

I  Man.  &  Or.  559.  Lord    Grave,,    3    E.   &   Y.,   Tithe   C. 

(/■)  S  A.  &   E.    161,   167.     See  The  11S0. 

Bailiffs    of   Tewkesbury  v.   Bricknell,  (p)  See  Taylor  v.  Cook,  8  Price,  650, 

I  Taunt.  142.  and  the  cases  cited  in  the  preceding 

(/)  6  M.  cV  W.  536,  540.  notes. 


PRESUMPTIVE    EVIDENCE.  653 

of  Richard  I.  (/)  The  existence  of  an  ancient  grant 
without  date  is  not,  however,  necessarily  inconsistent 
with  a  prescriptive  right ;  for  the  grant  may  either 
have  been  made  before  the  time  of  legal  memory,  or  in 
comnrmation  of  a  prescriptive  right.  (^)  So,  in  Scales 
v.  Key,  (r) — which  arose  on  a  question  of  an  alleged 
false  return  to  a  mandamus,  the  issue  being  as  to  the 
existence  of  an  immemorial  custom  within  the  city  of 
London, — the  jury  found  that  the  custom  existed  up 
to  1689  ;  and,  there  being  no  proof  of  its  having  been 
either  exercised  or  interfered  with  at  any  later  time,  this 
was  held  sufficient  to  entitle  the  defendants,  who  al- 
leged the  custom,  to  have  the  verdict  entered  in  their 
favor.  So,  in  Biddulph  v.  Ather,  (s)  where,  in  support 
of  a  prescriptive  right  to  wreck,  evidence  was  adduced 
of  uninterrupted  usage  for  ninety-two  years,  it  was 
held  not  to  be  conclusively  negatived  by  two  allow- 
ances in  eyre  four  hundred  years  previous,  and  a  sub- 
sequent judgment  in  trespass  ;  and  the  judge  having 
left  the  whole  case  to  the  jury,  who  found  in  favor  of 
the  claim,  the  court  refused  to  disturb  the  verdict. 
So,  a  prescriptive  claim  to  right  of  way  for  the  defend- 
ant and  his  servants,  tenants  and  occupiers  of  a  certain 
close;  and  a  justification  as  his  servant  and  by  his 
command,  is  not  necessarily  disproved  by  showing 
that  the  land  had,  fifty  years  before,  been  part  of  a 
large  common,  which  was  inclosed  under  the  provis- 
ions of  an  inclosure  act,  and  allotted  to  the  ancestor  of 
the  defendant.  And,  the  jury  having  found  for  the 
defendant,  a  rule  obtained  to  enter  a  verdict  for  the 
plaintiff,  was   discharged    after   argument, — Parke,  J., 


{p)  See  Bryant  v    Foot,  L.   Rep.,  2  (r)  n  A.  &  E.  819.     See  also  Wei 

Q.  B.  161  ;  (in  Cam.  Scac.)  3  lb.  497.  come  v.  Upton,  6  M.  &  W.  536. 

(q)  Addington   v.   Clode,   2  W.   Bl.  (j)  2  Wils.  21 
9«9. 


654     SECONDARY    RULES    OF    EVIDENCE. 

observing  that  there  was  no  rule  of  law  which  militated 
against  the  finding;  because,  from  the  usage,  the  jury 
might  infer  that  the  lord,  if  the  fee  were  in  him  before 
the  inclosure,  had  the  right  of  way.  (J)  So  it  is  laid 
down  by  Sir  J.  Leach,  V.  C,  that,  in  the  case  of  a 
modus  decimandi,  ancient  documents  can  not  prevail 
against  all  proof  of  usage,  unless  they  are  consistent 
with  each  other,  and  unless  the  effect  of  them  ex- 
cludes, not  the  probability,  but  the  possibility  of  the 
modus,  (tt) 

377.  Noth withstanding  the  desire  of  the  courts  to 
uphold  prescriptive  rights,  there  were  many  cases  in 
which  the  extreme  length  of  the  time  of  legal  memory 
exercised  a  very  mischievous  effect ;  as  the  presump- 
tion from  user,  however  strong,  was  liable  to  be  alto- 
gether defeated,  by  showing  the  origin  of  the  claim  at 
any  time  since  the  1  Rich.  I.  (a.  d.  1189).  Besides, 
possession  and  user  are  in  themselves  legitimate  evi- 
dence of  the  existence  of  rights  created  since  that 
period,  the  more  obvious  and  natural  proofs  of  which 
may  have  perished  by  time  or  accident.  "  Tern  pus,'' 
says  Sir  Edward  Coke,  "  est  edax  rerum ;  (z>)  and 
records  and  letters  patent,  and  other  writings,  either 
consume  or  are  lost  or  embezzled :  and  God  forbid 
that  ancient  grants  and  acts  should  be  drawn  in  ques- 
tion, although  they  can  not  be  shown,  which,  at  the 
first  was  necessary  to  the  perfection  of  the  thing."  (w) 
Acting  partly  on  this  principle,  but  chiefly  for  the 
furtherance  of  justice  and  the  sake  of  peace,  by  quiet- 
ing possession,  (x)  the  judges  attached  an  artificial 
weight  to  the  possession  and  user  of  such  matters  as 

(t)  Codling  v.  Johnson,  9   B.  &  C.  (v)  12  Co.  5. 

933.     See  further  on  this  subject,  Hill  (zv)  lb. 

v.  Smith,  10  East,  476;  Schoobridge  v.  (x)  Bright  v.  Walker,  1  C.  M.  &  R. 

Ward,  3  M.  &  Gr.  896.  217;  Eldridge  v.  Knott,  Cowp.  215. 

(*)  White  v.  Lible,  4  Madd.  224. 


PRESUMPTIVE    EVIDENCE.  655 

lie  in  grant,  where  no  prescriptive  claim  was  put  for- 
ward ;  and  in  process  of  time  they  established  it  as  a 
rule,  that  twenty  years'  adverse  and  uninterrupted  en- 
joyment of  an  incorporeal  hereditament,  uncontra- 
dicted and  unexplained,  was  cogent  evidence  from 
which  the  jury  should  be  directed  conclusively  to  pre- 
sume a  grant,  or  other  lawful  origin  of  the  possession 
(j)  This  period  of  twenty  years  seems  to  have  been 
adopted  by  analog)7  to  the  Statute  of  Limitations,  21 
Jac.  1,  c.  16,  which  makes  an  adverse  enjoyment  for 
twenty  years  a  bar  to  an  action  of  ejectment.  For,  as 
an  adverse  possession  of  that  duration  gave  a  posses- 
sory title  to  land  itself,  it  seemed  reasonable  that  it 
should  afford  a  presumption  of  right  to  a  minor  inter- 
est arising  out  of  the  land.  (V)  The  practical  effect 
of  this  quasi  prsesumptio  juris,  was  considerably  in- 
creased by  the  decision  in  Read  v.  Brookman,  (a) 
namely,  that  it  was  competent  to  plead  a  right  to  an 
incorporeal  hereditament  by  deed,  and  excuse  profert 
of  the  deed  by  alleging  it  to  have  been  lost  by  time 
and  accident.  It  became,  therefore,  a  usual  mode  of 
claiming  title  to  an  incorporeal  hereditament,  to 
allege  a  feigned  grant  within  the  time  of  legal 
memory,  from  some  owner  of  the  land  or  other  person 
capable  of  making  such  grant,  to  some  tenant  or 
person  capable  of  receiving  it,  (J?)  setting  forth  th 
names  of  the  supposed  parties  to  the  document,  (c) 
with  the  excuse  for  profert  that  the  document  had 
been  lost  by  time  and  accident.     On   a   traverse   of 

(y)  3    Stark.    Ev.   911,  3rd  Ed.  ;  1  Walker,  1  C.  M.  &  R.  217. 

Greenl.   Ev.  §  17,   7th   Ed.;  2   Wms.  (2)3    Stark.    Ev.    911,    3rd    Ed.;  2 

Saund.  175a,  6th  Ed.  ;  Bealey  v.  Shaw,  Wms.   Saund.  175  etseq.,  6th  Ed.,  and 

6  East,   208  ;  Balston   v.  Bensted,   1  the  cases  there  cited. 

Camp.  463  ;  Wright  v.  Howard,  1  S.  (a)  3  T.  R.  151. 

&  Stu.  203 ;    Campbell  v.  Wilson,  3  (b)  Shelford's    Real    Property   Acts, 

East,    294;  Lord    Guernsey   v.    Rod-  57,  7th  Ed. 

bridges,   1   Gilb.    Eq.  R.  4  ;  Bright  v.  (c)  Hendy  v.  Stevenson,  10  East,  55. 


656      SECONDARY    RULES     OF    EVIDENCE. 

the  grant,  proof  of  uninterrupted  enjoyment  foi 
twenty  years  was  held  cogent  evidence  of  its  exis- 
tence ;  and  this  was  termed  making  title  by  "  non- 
existing  grant." 

378.  Much  confusion  has  arisen  from  the  loose 
language  to  be  found  in  some  of  the  books,  on  the 
subject  of  this  presumption.  In  Holcroft  v.  Heel,  (d) 
— which  was  an  action  on  the  case  for  disturbance  of 
a  market, — it  appeared  that  the  grantee  of  a  market 
under  letters  patent  from  the  crown,  had  suffered 
another  person  to  erect  a  market  in  his  neighborhood, 
and  to  use  it  for  the  space  of  twenty-three  years  with- 
out interruption  ;  and  the  Court  of  Common  Pleas 
held,  that  such  user  operated  as  a  bar  to  the  plaintiff's 
right  of  action,  (e)  But  in  the  case  of  Darwin  v. 
Upton,  (/)  Lord  Mansfield  says,  "  The  enjoyment  of 
lights,  with  the  defendant's  acquiescence  for  twenty 
years,  is  such  decisive  presumption  of  a  right  by  grant 
or  otherwise,  that  unless  contradicted  or  explained, 
the  jury  ought  to  believe  it ;  but  it  is  impossible  that 
length  of  time  can  be  said  to  be  an  absolute  bar,  like 
a  statute  of  limitation ;  it  is  certainly  a  presumptive 
bar  which  ought  to  go  to  the  jury."  And  Duller,  J. 
adds,  "If  the  judge  meant  it  "  (i.  e.,  twenty  years' 
uninterrupted  possession  of  windows)  "  was  an  abso- 
lute bar,  he  was  certainly  wrong  ;  if  only  a  presump- 
tive bar,  he  was  right."  The  judgment  of  Lord  Mans- 
field 1.11  The  Mayor  of  Hull  v.  Horner,  (g)  is  to  the 
sarr.r  effect.  Again,  the  presumption  of  right  from 
twenty  years'  enjoyment  of  incorporeal  hereditaments, 

(d)  I  B.  &  P.  400.  which   adverse,    uninterrupted  posses- 

{e)  With   reference  to  this   decision,  sion    by    the    defendant,    for    twenty 

it  has  been  said  that  the  action  on  the  years,   is  a  bar.     2  Wms.  Saund.,  6th 

case,   bding  a  possessory  action,   was  Ed.,  175c. 

probaKv   considered  by    the   court  to  (/)  2  Wms.  Saund.,  6th  Ed.  175c. 

be  in   '.be  nature  of  an    ejectment  in  (g)  Cowp.  102. 


PRESUMPTIVE    EVIDENCE.  657 

is  often  spoken  of  as  a  "conclusive  presumption  ;  "  (A) 
an  expression  almost  as  inaccurate  as  calling  the  evi- 
dence a  "  bar."  If  the  presumption  be  "  conclusive,"  it 
is  a  presumptio  juris  et  de  jure,  and  not  to  be  rebutted 
by  evidence  ;  whereas,  the  clear  meaning  of  the  cases 
is,  that  the  jury  ought  to  make  the  presumption,  and 
act  definitely  upon  it,  unless  it  is  encountered  by 
adverse  proof.  "  The  presumption  of  right  in  such 
cases,"  says  Mr.  Starkie,  (z )  "  is  not  conclusive  ;  in 
other  words,  it  is  not  an  inference  of  mere  law,  to  be 
made  by  the  courts ;  yet  it  is  an  inference  which  the 
courts  advise  jurists  to  make  wherever  the  presump- 
tion stands  unrebutted  by  contrary  evidence."  It 
remains  to  add,  that  the  doctrine  in  question  has  only 
been  fully  established  in  modern  times,  and  was  not 
introduced  without  opposition.  (/) 

379.  In  order,  however,  to  raise  this  presumption 
against  the  owner  of  the  inheritance,  the  possession 
must  be  with  his  acquiescence  ;  and  such  a  possession 
with  the  acquiescence  of  a  tenant  for  life,  or  other 
inferior  interest  in  the  land,  although  evidence  against 
the  owner  of  the  particular  estate,  will  not  bind  the 
fee.  (£)  But  the  acquiescence  of  the  owner  of  the 
inheritance  may  either  be  proved  directly,  or  inferred 
from  circumstances.  (/)  E.g.,  wThere,  in  order  to 
prove  that  a  way  was  public,  evidence  was  given  of 


(h)  1  Greenl.  Ev.  §  17,  7th  Ed. ;  per  of  real  estates,  should  be  adhered  to 

Lord  Ellenborough,  in  Balston  v.  Ben-  than  departed   from,   though  of   very 

sted,  1  Camp.  463,  465  ;  and  Bealey  v.  modern   origin.     .     .     .     But    I   shall 

Shaw,  5  East,  208,  215.  ever  retain  the  sentiment  that   the  in- 

(2)  3  Stark.  Ev.  911,  3rd  Ed.  traduction   of  such  a  doctrine  was  a. 

(y)  "I  will  not   contend,"   says   Sir  perversion  of  legal  principles,  and  an 

W.   D.    Evans,    "  that,    after   the   de-  unwarrantable     assumption     of     au- 

cisions  which  have  taken  place,  it  may  thority."     2  Ev.  Poth.  139. 
not  be  more  convenient  to  the  public,  (k)  2  Wms.  Saund.  175,  6th  Ed.,  and 

that   the  doctrine    which  has  been  ex-  the  cases  there  cited. 
tensively  acted  upon  in  the  enjoyment  (/)  Gray  v.  Bond,  2  B.  &  B.  667. 

42 


653      SECONDARY    RULES    OF    EVIDENCE. 

acts  of  user  by  the  public  for  nearly  seventy  years; 
but  during-  the  whole  of  that  period  land  had  been  on 
lease ;  and  the  jury  were  directed  that  they  were  at 
liberty,  if  they  thought  proper,  to  presume  from  these 
acts  a  dedication  of  the  way  to  the  public  by  the 
owner  of  the  inheritance,  at  a  time  anterior  to  the 
land  being  leased ;  this  was  held  to  be  a  proper 
direction,  (m)  And  where  the  time  has  once  begun 
to  run  against  the  tenant  of  the  fee,  the  interposition 
of  a  particular  estate  does  not  stop  it.  (it) 

380.  This  presumption  only  obtains  its  practically 
conclusive  character,  when  the  evidence  of  enjoyment 
during  the  requred  period  remains  uncontradicted  and 
unexplained  In  the  case  of  Livett  v.  Wilson,  (<?) 
where  in  answer  to  an  action  of  trespass,  the  defendant 
pleaded  a  right  of  way  by  lost  grant ;  at  the  trial, 
before  Gaselee,  J.,  it  appeared  that  there  was  conflict- 
ing evidence  as  to  the  undisputed  user  of  the  way,  and 
the  alleged  right  had  been  pretty  constantly  contested ; 
whereupon  the  judge  told  the  jury,  that  if  they 
thought  the  defendant  had  exercised  the  right  of  way 
uninterruptedly  for  more  than  twenty  years,  by  virtue 
of  a  deed,  and  that  that  deed  had  been  lost,  they 
should  find  a  verdict  for  the  defendant  ;  and  this 
ruling  was  fully  confirmed  by  the  court  in  banc.  But 
the  fact  of  possession  for  a  less  period  than  twenty 
years,  is  still  a  circumstance  from  which,  when  coupled 
with  other  evidence,  a  jury  may  infer  the  existence  of 
a  grant.  (  />) 

381.  We  have  seen  that  by  the  common  law,  a 
title  by    prescription  could  not   be  made  against  the 

(w)  Winterbottom   v.   L^rd    Derby,  Dawson  v.   The   Duke  of  Norfolk,  I 

L.  Kep.,  2  Ex.  316.  Price,  246. 

(«)  Cross  v.  Lewis,  2  B.  &  C.  6S6.  (J>)  Benley  v.    Shaw,  6  East,    215  ; 

(o)  3  Bing.   115.      See  also   Doe  d.  see  per  Tindal,  C.  J.,  in  Hall  v.  Swift, 

FenwioU    v.   Reed,  5  B.  &  A.  232,  and  4  Bing.  N.  C.  381,  3S3. 


PRESUMPTIVE    EVIDENCE.  6$'j 

crown.  Qf)  But  this  doctrine  was  not  extended  to  the 
case  of  a  supposed  lost  grant ;  although,  in  order  to 
raise  such  a  presumption  against  the  crown,  a  longer 
time  was  required  than  against  a  private  individual,  (r) 
The  same  holds  where  it  is  sought  to  acquire  a  right 
in  derogation  of  the  rights  of  the  public,  (s) 

382.  By  the  general  law  and  of  common  right, 
the  pews  in  the  body  of  a  church  belong  to  the  par- 
ishioners at  large,  for  their  use  and  accommodation ; 
but  the  distribution  of  seats  among  them  rests  with 
the  ordinary,  whose  officers  the  churchwardens  are ; 
and  whose  duty  it  is  to  place  the  parishioners  accord- 
ing to  their  rank  and  station,  subject  to  the  control 
of  the  ordinary.  (7)  But  a  right  to  a  pew  as  appur- 
tenant to  an  ancient  messuage,  may  be  claimed  by 
prescription,  which  pre-supposes  a  faculty;  (21)  and  it 
is  only  in  this  light,  namely,  as  easements  appurte- 
nant to  messuages,  that  the  right  to  pews  is  considered 
in  courts  of  common  law.  (v)  That  right  is  either 
possessory  or  absolute.  The  ecclesiastical  courts  will 
protect  a  party  who  has  been  for  any  length  of  time 
in  possession  of  a  pew  or  seat,  against  a  mere  dis- 
turber, so  far  at  least  as  to  put  him  on  proof  of  a 

(q)  Supra,  §  368.  Inst.   302  ;  Byerley  v.  Windus,  5  B.  & 

(r)  1   Greenl.    Ev.  §  45,    7th    Ed.  ;  C.  1 ;  Pettman  v.  Bridger,  1   Phillim 

Tayl.  Ev.  §  it4,  4th  Ed.      See   Bedle  323;    Fuller  v.    Lane,    2   Add.  425; 

v.  Beard,  12  Co.  4,  5  ;  Mayor  of  Hull  Blake  v.  Usborne,  3  Hagg.  N.  R.  733. 

v.    Horner,    Cowp.    102   ;    Gibson   v.  See  also  Mainwaring  v.  Giles,  5  B.  & 

Clark,  1  Jac.  &  W.  159  ;  Roe  d.  John-  A.  356  ;  and  Bryan  v.  Whistler,  8  B. 

son   v.   Ireland,  II    East,  280  ;  Good-  &  C.  28S. 

title   d.    Parker   v.  Baldwin,   Id.  48S  ;  («)  Parker  v.    Leach,  L.   Rep.,  I  P. 

Jewison  v.    Dyson,  9   M.  &  W.  540  ,  C.  312,  327  ;  Pettman    v.    Bridger,   I 

Brune  v.  Thompson,  4  Q.  B.  543.  Phillim.    324  ;    Walter   v.    Gunner,    I 

(j)  Weld   v.    Hornby,  7  East,  195  ;  Hagg.  C.   R.   317  ;  Wyllie  v.  Mott,  1 

Chad  v  Tilsed,  2  B.  &  B.  403  ;  Vooght  Hagg.  N.  R.  39. 

v.  Winch,  2  B.  &  A.  662  ;  R.  v.  Mon-  (v)  3  Stark.  Ev.  tit.   Pew.  861,  3rd 

tague,  4  B.  &  C  598.  Ed. 

(/)  Corven's  Ca~e,  12  Co.  105-6  ;  3 


66o     SECONDARY    RULES    OF    EVIDENCE. 

paramount  title,  (w)  And  where  the  right  is  claimed 
as  appurtenant  to  a  messuage  within  the  parish,  pos- 
session for  a  long  series  of  years  will  give  a  title 
against  a  wrong-doer  in  a  court  of  common  law.  {x) 
But  where  the  origin  of  the  pew  is  shown,  or  the  pre- 
sumption is  rebutted  by  circumstances,  the  prescriptive 
claim  is  at  an  end.  (y)  In  order,  however,  to  raise 
the  presumption  of  a  right  by  prescription  or  faculty, 
as  against  the  ordinary,  much  more  is  required :  and 
with  respect  to  the  length  of  occupation  necessary  for 
this  purpose,  it  is  difficult  to  lay  down  any  general 
rule,  (z) 

383.  In  this  state  of  the  law  were  passed  the 
statutes  2  &  3  Will.  4,  cc.  71  and  100.  Notwithstand- 
ing all  that  had  been  done  by  facilitating  the  proof 
of  prescriptive  rights,  and  allowing  the  pleading  of 
non-existing  grants,  cases  still  occurred  in  which  the 
length  of  the  time  of  prescription  operated  to  the 
defeat  of  justice.  On  this  subject  the  Real  Property 
Commissioners  expressed  themselves  as  follows :  (a) 
"  In  some  cases  the  practical  remedy  fails,  and  the  rule 
(of  prescription)  produces  the  most  serious  mischiefs. 
A  right  claimed  by  prescription  is  always  disproved, 
by  showing  that  it  did  not  or  could  not  exist  at  any 
one  point  of  time  since  the  ccmmencement  of  legal 
memory,   &c.,  &c.     Amidst   these   difficulties,  it    has 


(w)  Pettman  v.   Bridget-,  i  Phillim.  296  ;  Morgan  v.  Curtis,  3  Man.  &  Ry, 

324  ;  Spry  v.  Flood,  2  Curt.  356.  389. 

(x)  Darwin    v.     Upton,     2     Wms.  (z)  See  Ashly  v.  Freckleton,  3  Lev. 

Saund.    175c,    6th    Ed.  ;    Kenrick    v.  73  ;  Kenrick  v.   Taylor,  1  Wils.   326 

Taylor,  1  Wils.  326  ;  Stocks  v.  Booth,  Griffith    v.    Matthews,   5   T.   R.    296 

1   T.   R.  428  ;  Rogers  v.  Brooks,   Id.  Pettman    v.    Bridger,    1    Phill.    325 

431,  n.  ;  Griffith  v.  Matthews,  5  T.  R.  Walter  v.  Gunner.  I  Hagg.  C.  R.  322 

296  ;  Jacob   v.    DaUow,  2  L.    Raym.  Woolcombe  v.  Ouldridge,  3  Add.  6 

755-  Pepper  v.  Barnard,  12  L.  J.,  Q.  B.  361 

(/)  Griffith  v.    Matthews,  5  T.  R.  (a)  First  Report  of  the  Real  Prop 

erty  Commissioners,  51. 


PRESUMPTIVE    EVIDENCE.  66 1 

been  usual  of  late,  for  the  purpose  of  supporting  a 
right  which  has  been  long  enjoyed,  but  which  can 
be  shown  to  have  originated  within  time  of  legal 
memory,  or  to  have  been  at  one  time  extinguished  by 
unity  of  possession,  to  resort  to  the  clumsy  fiction  of 
a  lost  grant,  which  is  pleaded  to  have  been  made  by 
some  person  seized  in  fee  of  the  servient,  to  another 
seized  in  fee  of  the  dominant  tenement.  But  besides 
the  objection  of  its  being  well  known  to  the  counsel, 
judge,  and  jury,  that  the  plea  is  unfounded  in  fact,  the 
object  is  often  frustrated  by  proof  of  the  title  of  the 
two  tenants  having  been  such,  that  the  fictitious  grant 
could  not  have   been  made  in  the  manner  alleged  in 

S3 

the  plea.  The  contrivance,  therefore,  affords  only  a 
chance  of  protection,  and  may  stimulate  the  adversary 
to  an  investigation,  for  an  indirect  and  mischievous 
end,  of  ancient  title  deeds,  which  for  every  fair  purpose 
have  long  ceased  to  be  of  any  use."  There  was  also 
this  inconvenience,  that  the  evidence  necessary  to 
support  a  claim  by  lost  grant,  would  not  support  a 
claim  by  prescription ;  so  that  a  plea  of  the  former 
might  miscarry  from  the  evidence  going  too  far.  (3) 
Add  to  all  which,  it  was  well  observed  that  the  requir- 
ing juries  to  make  artificial  presumptions  of  this  kind 
amounted,  in  many  cases,  to  a  heavy  tax  on  their  con- 
sciences, which  it  was  highly  expedient  should  be 
removed.  (V)  In  aword.it  became  at  length  apparent 
that  the  evil  could  only  be  remedied  by  legislation,  and 
the  statutes  in  question  were  passed  for  that  purpose. 
384.  The  former  of  these  statutes,  the  2  &  3  Will 
4,  c.  71,  intituled  "An  act  for  shortening  the  time 
of  prescription    in    certain   cases,"  after  reciting  that 

(3)  See  per  Littledale,  J.,  in  Blewett      Ed. ;  per  Parke,  B.,  in  delivering  the 
v.  Tregonning,  3  A.  &  E.  583,  5S4.  judgment   of   the    court    in    Bright  v. 

(0.2    Stark.    Evid.    911    n.    (/),    3rd      Walker,  1  C.  M.  &  R.  217-218. 


662      SECONDARY    RULES     OF    EVIDENCE. 

"the  expression  'time  immemorial,  or  time  whereof 
the  memory  of  man  runneth  not  to  the  contrary,'  is 
now  by  the  law  of  England,  in  many  cases,  consid- 
ered to  include  and  denote  the  whole  period  of  time 
from  the  reign  of  King  Richard  the  First,  whereby 
the  title  to  matters  that  have  been  long  enjoyed,  is 
sometimes  defeated  by  showing  the  commencement 
of  such  enjoyment,  which  is  in  many  cases  productive 
of  inconvenience  and  injustice ;  "  for  remedy  thereof 
proceeds  to  enact,  in  the  first  section,  that,  "  No  claim 
which  may  be  lawfully  made  at  the  common  law,  by 
custom,  prescription,  or  grant,  to  any  right  of  common 
or  other  profit  or  benefit  to  be  taken  and  enjoyed 
from  or  upon  any  land  of  our  sovereign  lord  the  king, 
his  heirs  or  successors,  or  any  land  being  parcel  of  the 
Duchy  of  Lancaster  or  Duchy  of  Cornwall,  or  of 
any  ecclesiastical  or  lay  person,  or  body  corporate, 
except  such  matters  and  things  as  are  herein  specially 
provided  for,  and  except  tithes,  rent,  and  services, 
shall,  where  such  right,  profit,  or  benefit  shall  have 
been  actually  taken  and  enjoyed  by  any  person 
claiming  right  thereto,  without  interruption  for  the 
full  period  of  thirty  years,  be  defeated  or  destroyed  by 
showing  only  that  such  right,  profit,  or  benefit  was  first 
taken  or  enjoyed  at  any  time  prior  to  such  period  of 
thirty  years,  but  nevertheless  such  claim  may  be 
defeated  in  any  other  way  by  which  the  same  is  now 
liable  to  be  defeated;  and  when  such  right,  profit,  or 
benefit  shall  have  been  so  taken  and  enjoyed  as  afore 
said  for  the  full  period  of  sixty  years,  the  right  thereto 
shall  be  deemed  absolute  and  indefeasible,  unless  it 
shall  appear  that  the  same  was  taken  and  enjoyed  by 
some  consent  or  agreement  expressly  made  or  given 
for  that  purpose  by  deed  or  writing." 

Sect.  2.  "  No  claim  which  may  be  lawfully  made 


PRESUMPTIVE    EVIDENCE.  663 

at  the  common  law,  by  custom,  prescription,  or  grant,  - 
to  any  way  or  other  easement,  or  to  any  watercourse, 
or  the  use  of  any  water,  to  be  enjoyed  or  derived 
upon,  over,  or  from  any  land  or  water  of  our  said 
lord  the  king,  his  heirs,  or  successors,  or  being  parcel 
of  the  Duchy  of  Lancaster,  or  the  Duchy  of  Cornwall, 
or  being  the  property  of  any  ecclesiastical  or  lay 
person,  or  body  corporate,  when  such  way  or  other 
matter  as  herein  last  before-mentioned  shall  have  been 
actually  enjoyed  by  any  person  claiming  right  thereto 
without  interruption,  for  the  full  period  of  twenty 
years,  shall  be  defeated  or  destroyed  by  showing  only 
that  such  way  or  other  matter  was  first  enjoyed  at  any 
time  prior  to  such  period  of  twenty  years,  but  never- 
theless such  claim  may  be  defeated  in  any  other  way 
by  which  the  same  is  now  liable  to  be  defeated ;  and 
where  such  way  or  other  matter  as  herein  last  be- 
fore-mentioned, shall  have  been  so  enjoyed  as  aforesaid 
for  the  full  period  of  forty  years,  the  right  thereto 
shall  be  deemed  absolute  .and  indefeasible,  unless  it 
shall  appear  that  the  same  was  enjoyed  by  some  con- 
sent or  agreement,  expressly  given  or  made  for  that 
purpose  by  deed  or  writing." 

Sect.  3.  "  When  the  access  and  use  of  light  to  ana 
for  any  dwelling-house,  workshop,  or  other  build- 
ing, shall  have  been  actually  enjoyed  therewith  for  the 
full  period  of  twenty  years  without  interruption,  the 
right  thereto  shall  be  deemed  absolute  and  indefea- 
sible, any  local  usage  or  custom  to  the  contrary  not- 
withstanding, unless  it  shall  appear  that  the  same  was 
enjoyed  by  some  consent  or  agreement,  expressly 
made  or  given  for  that  purpose  by  deed  or  writing." 

Sect.  4.  ft  Each  of  the  respective  periods  of  years 
hereinbefore  mentioned,  shall  be  deemed  and  taken  to 
be  the  period  next  before  some  suit  or  action  wherein 


664     SECONDARY    RULES     OF    EVIDENCE. 

the  claim  or  matter  to  which  such  period  may  relate 
shall  have  been  or  shall  be  brought  into  question,  and 
no  act  or  other  matter  shall  be  deemed  to  be  an  inter- 
ruption, within  the  meaning  of  this  statute,  unless  the 
same  shall  have  been  or  shall  be  submitted  to  or 
acquiesced  in,  for  one  year  after  the  party  interrupted 
shall  have  had  or  shall  have  notice  thereof,  and  of  the 
person  making  or  authorizing  the  same  to  be  made." 

Sect.  5.  "In  all  actions  upon  the  case  and  other 
pleadings,  wherein  the  party  claiming  may  now  by 
law  allege  his  right  generally,  without  averring  the 
existence  of  such  right  from  time  immemorial,  such 
general  allegation  shall  still  be  deemed  sufficient,  and  if 
the  same  shall  be  denied,  all  and  every  the  matters  in 
this  act  mentioned  and  provided,  which  shall  be  ap- 
plicable to  the  case,  shall  be  admissible  in  evidence 
to  sustain  or  rebut  such  allegation  ;  and  in  all  plead- 
ings to  actions  of  trespass,  and  in  all  other  pleadings 
wherein,  before  the  passing  of  this  act,  it  would  have 
been  necessary  to  allege  the  right  to  have  existed  from 
time  immemorial,  it  shall  be  sufficient  to  allege  the 
enjoyment  thereof,  as  of  right,  by  the  occupiers  of  the 
tenements  in  respect  whereof  the  same  is  claimed,  for 
and  during  such  of  the  periods  mentioned  in  this  act 
as  may  be  applicable  to  the  case,  and  without  claiming 
in  the  name  or  right  of  the  owner  of  the  fee,  as  is  now 
usually  done ;  and  if  the  other  party  shall  intend  to 
rely  on  any  proviso,  exception,  incapacity,  disability 
contract,  agreement,  or  other  matter  hereinbefore 
mentioned,  or  on  any  cause  or  matter  of  fact  or  of 
law  not  inconsistent  with  the  simple  fact  of  enjoyment, 
the  same  shall  be  especially  alleged  and  set  forth  in 
answer  to  the  allegation  of  the  party  claiming,  and 
shall  not  be  received  in  evidence  on  any  general 
traverse  or  denial  of  such  allegation." 


PRES  UMPTIVE    E  VIDENCE.  665 

Sect.  6.  "  In  the  several  cases  mentioned  in  and 
provided  for  by  this  act,  no  presumption  shall  be 
allowed  or  made  in  favor  or  support  of  any  claim, 
upon  proof  of  the  exercise  or  enjoyment  of  the  right 
or  matter  claimed,  for  any  less  period  of  time  or 
number  of  years  than  for  such  period  or  number  men- 
tioned in  this  act,  as  may  be  applicable  to  the  case  and 
to  the  nature  of  the  claim." 

Sect.  7.  "  The  time  during  which  any  person, 
otherwise  capable  of  resisting  any  claim  to  any  of  the 
matters  before  mentioned,  shall  have  been  or  shall  be 
an  infant,  idiot,  non  compos  mentis,  feme  covert,  or 
tenant  for  life,  or  during  which  any  action  or  suit  shall 
have  been  pending,  and  which  shall  have  been  dili- 
gently prosecuted  until  abated  by  the  death  of  any 
party  or  parties  thereto,  shall  be  excluded  in  the  com- 
putation of  the  periods  hereinbefore  mentioned, 
except  only  in  cases  where  the  right  or  claim  is  hereby 
declared  to  be  absolute  and  indefeasible." 

Sect.  8.  "  When  any  land  or  water  upon,  over,  or 
from  which  any  such  way  or  other  convenient  water- 
course or  use  of  water  shall  have  been,  or  shall  be 
enjoyed  or  derived,  hath  been,  or  shall  be  held  under 
or  by  virtue  of  any  term  of  life,  or  any  term  of  years 
exceeding  three  years  from  the  granting  thereof,  the 
time  of  the  enjoyment  of  any  such  way  or  other 
matter,  as  herein  last  before-mentioned,  during  the 
continuance  of  such  term,  shall  be  excluded  in  the 
computation  of  the  said  period  of  forty  years,  in  case 
the  claim  shall,  within  three  years  next  after  the  end 
or  sooner  determination  of  such  term,  be  resisted  by 
any  person  entitled  to  any  reversion  expectant  on  the 
determination  thereof" 

385.  A  large  number  of  decisions  on  the  con- 
struction of  this  important  statute  are  to  be  found  in 


666     SECONDARY    RULES    OF    EVIDENCE. 

the  books,  the  discussion  of  which  would  be  altogether 
out  of  place  here.  There  are,  however,  a  few  points 
which  require  notice,  i.  The  earlier  sections  of  the 
statute,  being  in  the  affirmative,  do  not  take  away  the 
common  law  ;  and  consequently  do  not  prevent  a 
party  pleading  a  prescriptive  claim,  or  claim  by  lost 
grant,  in  the  same  manner  as  he  might  have  done 
before  the  act  passed.  And  it  is  common  in  practice 
for  a  party  to  state  his  claim  differently  in  several 
counts  or  pleas,  relying  in  some  on  the  common  law, 
and  in  others  on  the  statute,  (d)  2.  The  words  in 
section  4, — "  some  suit  or  action  wherein  the  claim  or 
matter  to  which  such  period  may  relate,  shall  have 
been  or  shall  be  brought  in  question," — mean  generally, 
any  such  suit  or  action  ;  and  not,  individually,  each 
suit  or  action  in  which  the  question  may  from  time  to 
time  arise,  (c)  3.  The  word  "  presumption "  in  the 
sixth  section  is  used  in  the  sense  of  artificial  presump- 
tion, or  presumption  which,  without  any  other  evi- 
dence, shifts  the  burden  of  proof;  the  meaning  of  the 
section  being,  that  no  inference  shall  be  drawn  from 
the  unsupported  fact  of  an  enjoyment  for  less  than 
the  prescribed  number  of  years.  But  it  was  not 
intended  to  divest  enjoyment  for  a  shorter  period  of 
its  natural  weight  as  evidence,  so  as  to  preclude  a  jury 
from  taking  it  into  consideration,  with  other  circum- 
stances, as  evidence  of  a  grant ;  which  accordingly 
they  may  still  find  to  have  been  made,  if  they  are 
satisfied  that  it  was  made  in  point  of  fact,  (d)  4, 
The  statute  does  not  apply  to  easements  or  profits  a 
prendre  in  gross,  e.g.  to  a   claim  of  free  fishery  in  the 

(b)  See  Blewett  v.  Tregonning,  3  A.  (c)  Cooper  v.    Hubbuck,  12  C.   B., 

&  E.  534  ;  Wilkinson  v.   Proud,  11  M.  N.  S.  456,  467. 

&  W.  33  ;  Lowe  v.  Carpenter,  6  Exch.  (d)  See   Bright  v.  Walker,  I  C.  \L 

825  :  Warburton  v.  laike,  2  II.  &  N.  &  R.  211 
64. 


PRESUMPTIVE    EVIDENCE.  66; 

waters  of  another,  (e)  Lastly,  it  will  be  observed, 
that  while  the  second  speaks  of  "  any  way  or  other 
easement,  watercourse,  or  use  of  water,"  the  eighth 
uses  the  words,  "  way  or  other  convenient  watercourse, 
or  use  of  water;"  and  two  suppositions  have  been 
advanced  to  explain  this  apparent  inconsistency ;  one, 
that  the  word  "  convenient  "  has  crept  into  this  section 
by  mistake,  instead  of  "  easement ; "  the  other,  that 
"  convenient "  is  a  mistake  for  "  convenience,"  a  word 
used  in  old  books  as  synonymous  with  easement,  (f) 
386.  We  have  seen  that  "  tithes,  rent,  and  ser- 
vices"  are  excepted  out  of  the  2  &  3  Will.  4,  c.  71,  s. 
1.  The  two  latter  are  provided  for  by  the  Statute  of 
Limitations,  3  &  4  Will.  4,  c.  27;  (^)  the  provirions 
of  which  are  irrelevant  to  our  present  purpose  :  and 
the  former  by  2  &  3  Will.  4,  c.  100,  which,  in  itf  first 
section,  enacts,  "  all  prescriptions  and  claims  of  <  r  for 
any  modus  decimandi,  or  of  or  to  any  exemption 
from  or  discharge  of  tithes,  by  composition  real  or 
otherwise,  shall,  in  cases  where  the  render  of  tithes  in 
kind  shall  be  hereafter  demanded  by  our  lojd  the 
king,  his  heirs  or  successors,  or  by  any  Duke  of  Corn- 
wall, or  by  any  lay  person,  not  being  a  corporation 
sole,  or  by  any  body  corporate  of  many,  whether  tem- 
poral or  spiritual,  be  sustained  and  be  deemed  good 
and  valid  in  law,  upon  evidence  showing,  in  cases  ot 
claim  of  a  modus  decimandi,  the  payment  or 
render  of  such  modus,  and,  in  cases  of  claim  to  ex- 
emption or  discharge,  showing  the  enjoyment  of 
the  land  without  payment  or  render  of  tithes, 
money,  or  other  matter  in  lieu  thereof,  for  the  full 
period  of  thirty  years  next  before  the  time  of  such  de- 

(t)  Shuttlcworth  v.   Le  Fleming,  19      Ed. 
C.  B.,  N.  S.  687.  (g)  Amended  by  the  37  &  38  Vict. 

(/)  Gale  on    Easements,    169,   4th      c.  57. 


668     SECONDARY    RULES    OF    EVIDENCE. 

mand,  unless  in  the  case  of  claim  of  a  modus  decimandi, 
the  actual  payment  or  render  of  tithes  in  kind,  or  of 
money  or  other  thing  differing  in  amount,  quality,  or 
quantity  from  tne  modus  claimed,  or  in  case  of  claim 
to  exemption  or  discharge,  the  render  or  payment  of 
tithes,  or  of  money  or  other  matter  in  lieu  thereof 
shall  be  shown  to  have  taken  place  at  some  time  prioi 
to  such  thirty  years,  or  it  shall  be  proved  that  such 
payment  or  render  of  modus  was  made,  or  enjoyment 
had  by  some  consent  or  agreement  expressly  made  or 
given  for  that  purpose  by  deed  or  writing;  and  if 
such  proof  in  support  of  the  claim  shall  be  extended 
to  the  full  period  of  sixty  years  next  before  the  time 
of  such  demand,  in  such  cases  the  claim  shall  be 
deemed  absolute  and  indefeasible,  unless  it  shall  be 
proved  that  such  payment  or  render  of  modus  was 
made,  or  enjoyment  had  by  some  consent  or  agree- 
ment expressly  made  Or  given  for  that  purpose  by 
deed  or  writing  ;  and  where  the  render  of  tithes  in 
kind  shall  be  demanded  by  any  archbishop,  bishop, 
dean,  prebendary,  parson,  vicar,  master  of  hospital,  or 
other  corporation  sole,  whether  spiritual  or  temporal, 
then  every  such  prescription  or  claim  shall  be  valid 
and  indefeasible, upon  evidence  showing  such  payment 
or  render  of  modus  made  or  enjoyment  had,  as  is  here- 
inbefore mentioned,  applicable  to  the  nature  of  the 
claim,  for  and  during  the  whole  time  that  two  persons 
in  succession  shall  have  held  the  office  or  benefice  in 
respect  whereof  such  render  of  tithes  in  kind  shall  be 
claimed,  and  for  not  less  than  three  years  after  the 
appointment  and  institution  or  induction  of  a  third 
person  thereto  :  Provided  always,  that  if  the  whole 
time  of  the  holding  of  such  two  persons  shall  be  less 
than  sixty  years,  then  it  shall  be  necessary  to  show 
such  payment  or  render  of  modus  made  or  enjovment 


PRESUMPTIVE    EVIDENCE.  669 

had  (as  the  case  may  be),  not  only  during  the  whole 
of  such  time,  but  also  during  such  further  number  of 
years,  either  before  or  after  such  time,  or  partly  before 
and  partly  after,  as  shall  with  such  time  be  sufficient 
to  make  up  the  full  period  of  sixty  years,  and  also  foi 
and  during  the  further  period  of  three  years  after  the 
appointment  and  institution  or  induction  of  a  third 
person  to  the  same  office  or  benefice ;  unless  it  shall 
be  proved  that  such  payment  or  render  of  modus  was 
made,  or  enjoyment  had  by  some  consent  or  agree- 
ment expressly  made  or  given  for  that  purpose  by 
deed  or  writing."  By  sect.  8,  "In  the  several  cases 
mentioned  in  and  provided  for  by  this  act,  no  presump- 
tion shall  be  allowed  or  made  in  favor  or  support  of 
any  claim,  upon  proof  of  the  exercise  or  enjoyment  of 
the  right  or  matter  claimed,  for  any  less  period  of  time 
or  number  of  years  than  for  such  period,  or  number 
mentioned  in  this  act,  as  may  be  applicable  to  the  case 
and  to  the  nature  of  the  claim,  (g)  This  enact- 
ment, like  the  former,  has  not  taken  away  the  common 
law.  (A) 

387.  2.  We  proceed,  in  the  second  place,  to  con- 
sider the  presumptions  made  from  user,  in  cases  of  in- 
corporeal rights  not  coming  within  the  statutes  above 
referred  to.  Among  the  foremost  of  these  may  be 
ranked  the  presumption  of  the  dedication  of  highways 
to  the  public.  "  A  road,"  says  Littledale,  J.,  in  R.  v. 
Metlor,  (z)  "becomes  public,  by  reason  of  a  dedication 
of  the  right  of  passage  to  the  public  by  the  owner  of 

(g)  Yhere  are  several  other  provi-  71,  and  subsequent  acts.     The  2  &  3 

sions    and   exceptions  in  this   statute  Will.  4,  c.  100,  has  been  amended  in 

which  are  not  inserted,  as  the  practi-  some  respects  by  4  &  5  Will.  4,  c.  83. 
cal  operation  of  presumptive  evidence  (A)  The   Earl  of  Stamford  v.  Dun 

of    exemption    from    tithe     has    been  bar,  13  M.  &  W.  822. 
almost  put  an   end  to  by  the  Tithe  (i)  1  B.  &  Ad.  32,  37.      And  see  R. 

Commutation   Act    6  &  7   Will.   4,   c.  v.  St.  Benedict,  4  B.  &  A.  447. 


670      SECONDARY    RULES    OF    EVIDENCE. 

the  soil,  and  of  an  acceptance  of  the  right  by  the  pub- 
lic." And  such  dedication  may  be  either  general  or 
limited, — e.g.,  the  owner  of  the  soil  may  dedicate  a 
footway  to  the  public,  subject  to  his  right  of  period- 
ically ploughing  it  up.  (/)  The  fact  of  dedication 
may  either  be  proved  directly,  or  inferred  from  circum- 
stances, (/6)  especially  from  that  of  permissive  user  on 
the  part  of  the  public.  If  a  man  opens  his  land  so 
that  the  public  pass  over  it  continually,  the  public, 
after  a  user  of  a  veiy  few  years,  will  acquire  a  right  of 
way,  (/)  unless  some  act  be  done  by  the  owner,  to 
show  that  he  had  only  intended  to  give  a  license  to  pass 
over  the  land,  and  not  to  dedicate  a  right  of  way  to 
the  public,  (iii)  Among  acts  of  this  kind  may  be 
reckoned  the  putting  up  a  bar,  or  excluding  by  posi- 
tive prohibition  persons  from  passing,  (it)  The  com- 
mon course  is  by  shutting  up  the  passage  for  one  day 
in  each  year,  (o)  Where  no  acts  of  this  nature  have 
been  done,  there  is  no  fixed  rule  as  to  the  length  of 
user,  which  is  sufficient  when  unaccompanied  by  other 
circumstances,  to  constitute  presumptive  evidence  of  a 
dedication ;  but  unquestionably  a  much  shorter  time 
will  suffice  than  is  required  to  raise  the  presumption 
of  a  grant  among  private  individuals.  In  the  case  of 
The    Rugby    Charity    v.    Merry  weather,    (/>)    Lord 

(J)  Mercer  v.  Woodgate,  L.  Rep.,  5  erts  v.  Karr,  Id.  262,  n. ;  Lethbridge 

Q.  B.  26  ;  Arnold  v.  Blaktr  (in   Cam.  v.  Winter,  Id.  263,  n. 
Scac.)  6  Id.  433.  (<?)  Per   Patteson,  J.,  in  The   British 

(k)  R.   v.   Wright,  3  B.  &  Ad.  681  ;  Museum  v.  Finnis,  5  C.  &  P.  460,  465. 

Surrey    Canal    Company   v.    Hall,   1  But   the  keeping  a  gate  across  a  road 

Man.  &  Gr.  392  ;  R.  v.  St.  Benedict,  4  is  not  conclusive  evidence  against   its 

B.  &  A.  447.  being  a  public  way,  for  it  may  have 
(/)  The  British  Museum  v.  Finnis,  5  been  granted  with  the  reservation  of 

C.  &  P.  460;  Lade  v.  Shepherd,  2  Str.      keeping  a  gate  in  order   to   prevent 
1004.  cattle  straying.     Davies  v.  Stephens 

(m)  Barraclough  v.  Johnson,  8  Ad.      7  C  &  P.  570. 
&  E.  qg.  (p)  11  East,  376,11. 

(«)  R.  v.  Lloyd,  1  Camp.  260  ;  Rob- 


PRESUMPTIVE    EVIDENCE.  671 

Kenyan  says  that  "  in  a  great  case,  which  was  much 
contested,  six  years  was  held  sufficient :  "  and  where 
the  existence  of  a  highway  would  be  beneficial  to  the 
owner  of  the  soil,  a  dedication  has  been  presumed  from 
a  user  of  four  or  five  years,  (q)  But  the  animus  or  in- 
tention of  the  owner  of  the  soil  in  doing  the  act,  or, 
premitting  the  passage,  must  be  taken  into  consider- 
ation, (r)  "In  order,"  says  Parke,  B.,  in  Poole  v. 
Huskinson,  (s)  "  to  constitute  a  valid  dedication  to 
the  public  of  a  highway  by  the  owner  of  the  soil,  it  is 
clearly  settled  that  there  must  be  an  intention  to  dedi- 
cate— there  must  be  an  animus  dedicandi,  of  which  the 
user  by  the  public  is  evidence,  and  no  more;  and  a 
single  act  of  interruption  by  the  owner  is  of  much 
more  weight,  upon  a  question  of  intention,  than  many 
acts  of  enjoyment."  And  this  animus  or  intention  is 
to  be  determined  by  jury.  (J)  But  the  dedication  of 
a  highway  to  the  public  must  be  the  act,  or  at  least 
with  the  consent  of  the  owner  of  the  fee  ;  the  act  or 
assent  of  a  tenant  for  any  less  interest  will  not  suffice  ; 
(11)  although  the  assent  of  the  owner  of  the  inheritance 
may  be  inferred  from  circumstances,  (zi)  Upon  the 
whole,  the  public  are  favored  in  questions  of  this  na- 
ture ;  (x)  and  it  seems,  that  when  a  road  has  once  been 
a  king's  highway,  no  lapse  of  time  or  cessation  of  user 
will  deprive  the  public  of  the  right  of  passage  when- 


(q)  Jarvis  v.  Dean,  3  Bing.  447.  v.  Veal,  5  B.  &  A.  454. 

(r)  Poole  v.  Huskinson,  11  M.  &  W.  (v)  Winterbottom  v.  Lord  Derby,  L. 

827  ;  R.  v.  The  Inhabitants  of  East  Rep.,  2  Ex.  316  ;  Dav"es  v.  Stephens, 

Mark,  11  Q.  B.  877.  7  Car.  &  P.  570 ;  R.  v.  Barr,  4  Camp. 

(j)  11  M.  &  W.  827,  830.  16;  Jarvis  v.   Dean,  3  Bing.  447  ;  R. 

(t)  Barraclough  v.  Johnson,  8  A.  &  v.    Hudson,    2    Str.  909  ;  Harper   v. 

E.   99  ;    Surrey   Canal    Company   v.  Charlesworth,  4  B.  &  C  574. 

Hall,  1  Man.  &  G.  392.  (x)  R.  v.  The   Inhabitants  of  East 

(«)  Baxter  v.   Taylor,  I  Nev.  &  M.  Mark,    11   Q.  B.   877;  R.  v.  Petrie,  4 

II  ;  R.  v   Bliss,  7  A.  &  E.  ^50  ;  Wood  E.  &  B.  737. 


672     SECONDARY    RULES     OF    EVIDENCE. 

ever  they  please  to  resume  it.  (y)  The  presumption 
in  question  can,  it  is  said,  be  made  against  the 
Crown.  (z) 

388.  The  next  subject  calling  for  attention  here 
is  the  presumption  of  the  surrender  or  extinguishment 
of  incorporeal  rights  by  non-user.  This  is  altogether 
unaffected  by  the  prescription  acts,  (a)  and  the  gene- 
ral principle  is  thus  stated  by  Abbott,  C.  J.,  in  Doe  d. 
Putland  v.  Hilder:(^)  "The  long  enjoyment  of  a 
right  of  way  by  A.  to  his  house  or  close,  over  the  land 
of  B.,  which  is  a  prejudice  to  the  land,  may  most  rea- 
sonably be  accounted  for,  by  supposing  a  grant  of 
such  right  by  the  owner  of  the  land :  and  if  such  a 
right  appear  to  have  existed  in  ancient  times,  a  long 
forbearance  to  exercise  it,  which  must  be  inconvenient 
and  prejudicial  to  the  owner  of  the  house  or  close, 
may  most  reasonably  be  accounted  for,  by  supposing  a 
release  of  the  right.  In  the  first  class  of  cases,  there- 
fore, a  grant  of  the  right,  and  in  the  latter,  a  release  of 
it,  is  presumed."  But  the  result  of  the  cases  on  this 
subject  would  seem  to  be,  that  the  non-user  of  a  privi- 
lege or  easement,  is  merely  evidence  of  abandonment ; 
and  that  the  question  of  abandonment  is  one  of  fact, 
which  must  be  determined  on  the  whole  of  the  cir- 
cumstances of  each  particular  case,  (c) 

389.  With  respect  to  the  presumed  extinguish- 
ment of  "Easements"  from  cessation  of  enjoyment, 
the  following  principles  are  laid  down  in  a  text  work : 
(d)  "  Though  the  law  regards  with  less  favor  the  ac- 

(}')  2   Selw.  N.  P.   1362,   9th    Ed  ;  (6)  2  B.  &  A.  782,  791. 

Dawes   v.    Hawkins,  8  C.  B.,  N.    S.  (c)  See  per  Wood,  V.  C,  Crossley  v 

848,  858.  Lightowler,  L  Rep.,  3  Eq.  279,  292  ; 

(1)  R.  v.  The  Inhabitants  of   East  Eldridge  v.  Knott,  Cowp.  214;  Simp- 
Mark,  11    Q.  B.  877.     See   ante,    §§  son  v.  Gutteridge,  I  Madd.  609. 
368,  381.  (</)  Gale  on  Easements,  528,  4th  Ed. 

(a)  Gale  on  Easements,  529,  4th  Ed. 


PRESUMPTIVE    EVIDENCE.  673 

quisition  and  preservation  of  these  accessorial  rights, 
than  of  those  which  are  naturally  incident  to  property, 
and,  therefore,  does  not  require  the  same  amount  of 
proof  of  the  extinction,  as  of  the  original  establish- 
ment of  the  right :  yet  as  an  easement,  when  once 
created,  is  perpetual  in  its  nature,  being  attached  to 
the  inheritance  and  passing  with  it,  it  should  seem 
that  some  acquiescence  on  the  part  of  the  owner  of  the 
inheritance  must  be  necessary,  to  give  validity  to  any 
act  of  abandonment."  Now  easements  are  divided 
into  continuous  and  intermittent — the  former  being 
those  of  which  the  enjoyment  is  or  may  be  continual, 
without  the  necessity  of  any  actual  interference  by 
man;  as  waterspouts,  the  right  to  air,  light,  &c. ;  and 
the  latter  being  those  of  an  opposite  description,  such 
as  rights  of  way,  &c.  With  respect  to  continuous 
easements,  the  correct  inference  from  the  cases  seems 
to  be,  that  there  is  no  time  fixed  by  law  during  which 
the  cessation  of  enjoyment  must  continue,  in  order  to 
raise  the  presumption  of  an  abandonment ;  but  it  is 
for  the  jury  to  take  all  the  circumstances  of  the  case 
into  their  consideration,  in  order  to  see  if  there  has 
been  an  intention  to  renounce  the  right,  (e)  It  was 
held  by  Lord  Ellenborough  at  nisi  prius,  that  where  a 
window  has  been  shut  up  for  twenty  years,  the  case 
stands  as  if  it  had  never  existed,  (y) 

390.  With  respect  to  easements  of  the  intermittent 
kind,  there  are  some  expressions  to  be  found  in  the 
books  which  strongly  favor  the  notion,  that  in  order  to 
raise  the  presumption  of  extinguishment  from  non-user 
alone,  it  must  have  reached  the  full  period  of  twenty 
years;    (g)  in  analogy  to  the  statute  of  limitations, 

(e)  G»le  on  Easements,  535,  4th  Ed.,  Obee,  3  Camp.  514. 

citing  Liggins  v.  Inge,  7   Bing.  682,  (/)  Lawrence    v.    Obee,    3    Camp. 

693,  per  Tindal,  C  J.  ;  Hale  v.   Old-  514. 

royd,   14   M.  &  W.  789  ;  Lawrence  v.  (g)  Gale  on  Easements,  561,  ct  seq., 
43 


674     SECONDARY    RULES     OF    EVIDENCE. 

and  the  rule  established  respecting  title  by  non-exist- 
ing grant.  (/£)  But  it  seems  clear  that  mere  intermit- 
tance  of  the  user,  or  slight  alterations  in  the  mode  of 
enjoyment,  will  not  be  sufficient  to  destroy  the  right, 
when  circumstances  do  not  show  any  intention  of 
relinquishing  it ;  (z')  whilst,  on  the  other  hand,  a  much 
shorter  period  than  twenty  years,  when  it  is  accompa- 
nied by  circumstances,  such  as  disclaimer,  or  other 
indication  of  intention  to  abandon  the  right,  will 
be  sufficient  to  raise  the  presumption  of  extinguish- 
ment. (/£) 

391.  Licenses  may  be  presumed  ;  and,  as  a  general 
rule,  from  a  much  shorter  period  of  enjoyment  than 
twenty  years.  (/) 

392.  3.  We  proceed  lastly  to  the  numerous  impor- 
tant presumptions  of  facts,  which  may  be  made  in  sup- 
port of  beneficial  enjoyment.  The  general  principle 
governing  the  subject  is  thus  stated  by  Tindal,  C.  J.,  in 
Doe  d.  Hammond  v.  Cooke :  (;;/)  "  No  case  can  be 
put  in  which  any  presumption  "  (semble,  any  artificial 
presumption)  "  has  been  made,  except  where  a  title 
has  been  shown  by  the  party  who  calls  for  the  pre- 
sumption, good  in  substance,  but  wanting  some 
collateral  matter  to  make  it  complete  in  point  of  form. 

4th  Ed.,  citing  Co.  Litt.   114b  ;  Doe  Harvie  v.  Rogers,  3  Bligh,  N.  S.  440  ; 

d.  Putland  v.   Ililder,  2  B.  &  A.  7S2,  R.  v.  Chorley,  12  Q.  B.  515  ;  Ward  v 

791,  per  Abbott,  C.  J.  ;  Moore  v.  Raw-  Ward,  7  Exch.  838. 

son,  3  B.  &  C.  332,  339,  per  Littledale,  (/)  Phill.  &  Am.   Ev.  478  ;  1  Phill 

J.;  Holmes   v.    Buckley,    1    Eq.    Ca.  Ev.  491,   10th   Ed.;  Doe  d.  Foley  v. 

Abr.  27.  Wilson,  11  East,  56  ;  Goodtitle  d.  Par- 

(4)  Supra,  %  377.  ker  v.   Baldwin,  Id.  48S  ;  Ditcham  v. 

(/)  Gale  on  Easements,  563,4th  Ed.,  Bond,  3  Camp.   524;  Doe  d.  Earl  of 

citing  Payne  v.  Shedden,  I  M.  &  Rob.  Dunraven  v.  Williams,  7  C.  &  P.  332. 

382  ;  R.  v.  The  Inhabitants  of  Chor-  {in)  6  Bing.  174,   179.     See,  also,  1 

ley,  12  Q.  B.   515  ;  Ward  v.  Ward,  7  Greenl.  Ev.  §  46,  7th  Ed. ;  3  Stark. 

Exch.   838  ;  Lovell  v.  Smith,  3  C  B.,  Ev.    935,  3rd     Ed.  ;    The    Attorney. 

N.  S.  120.  General  v.  The  St.  Cross  Hospital,  17 

(k)  Gale  on  Easements,  567,  4th  Ed. ;  Beav.  435. 
Norbury  v.  Meade,  3  Bligh,  241,  242  ; 


PRESUMPTIVE    EVIDENCE.  675 

In  such  case,  where  the  possession  is  shown  to  have 
been  consistent  with  the  existence  of  the  fact  directed 
to  be  presumed,  and  in  such  cases  only,  has  it  ever  been 
allowed."  Presumptions  of  this  kind  are  entitled  to 
additional  weight  if  the  possession  would  otherwise  be 
unlawful,  or  incapable  of  satisfactory  explanation,  (n) 
On  the  other  hand,  the  terms  in  which  the  presump- 
tion will  be  brought  under  the  notice  of  the  jury,  are 
considerably  influenced  by  the  nature  of  the  document 
or  other  matter  to  be  presumed,  the  facility  or  difficulty 
of  adducing  more  direct  proof,  and  by  the  right  in 
question  being  favored  or  disfavored  by  law. 

393.  There  is  hardly  a  species  of  act  or  document, 
public  or  private,  that  will  not  be  presumed  in  support 
of  possession.  Matters  of  record  generally,  (0)  and 
even  acts  of  parliament,  (p)  at  least  very  ancient 
ones,  (y)  will  thus  be  presumed ;  as  also  will  grants 
from  the  crown,  (r)  letters  patent,  (i)  writs  of  ad  quod 
damnum  and  inquisitions  thereon,  (J)  by-laws  of  cor- 
porations, («)  fines  and  recoveries,  (x)  feoffments,  (jy) 
the  enfranchisements  of  copyholds,  (z)  endowment  of 
vicarages,  (a)  exemption  from  tithes,  (b)  consent  of 

(«)  1  Greenl.  Ev.  §  46,  7th  Ed.  (/)  R.  v.  Montague,  4  B.  &  C.  598. 

(0)  Plowd.  411  ;  Finch,  L.  399,  400  ;  (u)  Case  of  Corporations,  4  Co.  78a. 

Styl.  22.  (x)  Read  v.  Brookman,  3  T.  R.  151, 

(/)  Skinn.  79  ;  Lopez  v.   Andrews,  159,  per  Buller,  J.,  citing  Hasselden 

3   Man.   &    R.    329,  n.  ;  Eldridge   v.  v.  Bradney,  T.  4  Geo.  III.  C.  B.     See 

Knott,    Cowp.   215,  per  Lord   Mans-  Doe  d.  Fenwick  v.  Reed,  5  B.  &  A. 

field.  232. 

(g)  R.  v.  The  Chapter  of  Exeter,  12  (y)  21  Edw.  IV.  74  B.  pi.  5. 

A.  &  E.  532.  (2)  Roe  d.  Johnson  v.    Ireland,    11 

(r)  Mayor  of  Hull  v.  Horner,  Cowp.  East,  280. 

102;  Gibson   v.    Clark,   1   Jac.  &  W.  (a)  Crimes  v.  Smith   12  Co.  4;  Par- 

159  ;  Read  v.  Brookman,  3  Tr.  158  ;  sons  v.  Bellamy,  3  E.  &  Y.  832  ;  Cope 

The  Attorney-General  v.   The    Dean  v.    Bedford,    Palm.    426  ;    Wolley   v 

of  Windsor,  24  Beav.  679.  Brownhill,     M'Clel.    317  ;    Inman   v. 

{s)  Read  v.  Brookman,  3  T.  R.  158  ;  Whormby,  I  Y.  &  J.  545  ;  Apperley  v. 

Pickering  v.    Lord   Stamfor  J,  2  Ves.  Gill,  1  C.  &  P.  316. 

on.  583-  {&)  Norbury  v.  Meade,  3  Bligh.  211  ; 


676     SECONDARY    RULES     OF    EVIDENCE. 

the  ordinary  to  composition  deeds,  (V)  powers  in  char- 
ities to  sell  lands,  and  sales  under  such  powers,  (V)  or- 
ders of  justices  of  the  peace  to  stop  up  roads,  (e)  &c. 
So,  likewise,  the  fact  of  a  particular  person  having  sat 
in  parliament  in  ancient  times,  (/")  the  disseverance 
of  tithes  by  the  requisite  parties,  previous  to  the 
restraining  statutes,  (g)  copyhold  customs,  (/£)  admit- 
tance to,  (z )  and  surrender  of  copyholds,  (k)  surrender 
by  tenant  for  life,  (/)  and  lawful  executorship,  (m) 
will  be  presumed  from  lapse  of  time.  In  one  case  it 
was  held  that  induction  might  be  presumed  from  fif- 
teen years'  undisturbed  possession,  (n)  And  where 
it  is  proved  that,  from  a  very  early  period,  there  has 
been  the  constant  performance  of  divine  service  in  an 
ancient  chapel,  even  although  there  be  no  proof  that 
either  marriages  were  solemnized  or  burials  performed 
therein,  this  raises  the  presumption  that  the  chapel  was 
consecrated.  (0)  So,  the  lawful  origin  of  a  several 
fishery,  (/)  the  liability  to  repair  fences,  (q)  the  right 
to  land  nets,  (r)  the  death  of  remote  ancestors  with- 
out issue,  (s)  mesne  assignments  of  leaseholds,  (f)  re- 

Bayley  v.    Drever,    i    A.    &  E.  449  ;  (/)  2  Wms.  Saund.  42c!,  6th  Ed. 

Rose  v.  Calland,  5  Ves.  186.  {nt)  R.   v.   Barnsley,  1  M.  &  Selw. 

(c)  Sawbriiige  v.  Benton,  2  Anst.  372.      377. 

(d)  St.    Mary     Magdalen    v.    The  (n)  Chapman  v.  Beard,  3  Anst.  942. 
Attorney-General,  6  Ho.  Lo.  Cas.  189.  (<?)  Rugg  v,    Kingsmill,    L.   Rep.,   I 

(e)  Williams  v.    Eyton,  4  H.    &   N.      Ad.  &  Ec.  343,  350  ;  Moysey  v.    Hill- 
357«  coat,  2  Hagg.  N.  S.  50. 

(/)  Hastings'  Peerage  Case,  8  CI.  &  (/)  Malcomson   v.    O'Dea,  10   Ho. 

Fin.  144.  Lo.  Cas.  593. 

(g)  Countess  of  Dartmouth  v.  Rob-  {q)  Barber  v.  Whiteley,  34  L.  J.,  Q. 

erts,  16  East,  334.  B.  212  ;  Boyle  v.  Tamlyn,  6  B.   &  C. 

(h)  Doe  d.  Mason  v.  Mason,  3  Wils.  329. 

63.  (r)  Gray  v.  Bond,  2  B.  &  B.  667. 

(i)  Watkins  on  Copyholds,  269,  Ed.  (s)  The  Earl  of  Roscommon's  Claim, 

1797.      See  Rawlinson  v.  Greeves,  3  6  CI.   &   F.   97;  Doe  d.    Oldham   v. 

Bulst.  237.  Woolley,  8  B.  &  C.  22. 

(k)  Knight   v.   Adamsor.,  2  Freem.  (/)  Earl  d.  Goodwin  v.  Baxter,  2  W. 

106  ;  Wilson  v.  Allen,  I  Jac.  &  W.  Bl.  1228  ;  White  v.  Foljambe,  II  Ve& 


dn. 


350. 


PRESUMPTIVE    EVIDENCE.  677 

conveyances  by  feoffee  to  feoffor,  (#)  and  by  mort- 
gagee to  mortgagor,  (v)  &c.,  &c.,  have  in  like  manner 
been  presumed. 

394.  Under  this  head  comes  the  important  doc- 
trine of  the  presumption  of  conveyances  by  trustees 
It  is  a  general  rule,  that  whenever  trustees  ought  to 
convey  to  the  beneficial  owner,  it  should  be  left  to  the 
jury  to  presume  that  they  have  so  conveyed,  where 
such  presumption  can  reasonably  be  made,  (x)  This 
rule  has  been  established  to  prevent  just  titles  from 
being  defeated  by  mere  matter  of  form,  but  it  is  not 
easy  to  determine  the  extent  of  it.  It  may,  however, 
be  stated  generally,  that  the  presumption  ought  to  be 
one  in  favor  of  the  owner  of  the  inheritance,  and  not 
one  against  his  interest ;  (jj/)  and  the  rule  is  subject  to 
this  further  limitation,  that  the  presumption  can  not 
be  called  for,  where  it  would  be  a  breach  of  trust  in 
the  trustees  to  make  the  conveyance,  (z)  On  the  same 
principle,  re-conveyances  from  the  trustees  to  the  cestui 
que  trust  will  be  presumed  ;  (a)  as  also  will,  under 
proper  circumstances,  conveyances  from  old  to  new 
trustees.  (6) 

395.  Few  subjects  have  given  rise  to  greater  dif- 
ference of  opinion,  than  that  of  the  presumption  of 

(u)  Tenny  d.  Whinnett  v.  Jones,  3  son  v.  Allen,  1  Jac.  &  W.  620  ;  Doe  d. 

M.  &  Scott,  472.  Hodsden    v.    Staple,  2  T.    R.    696  ; 

(v)  Cooke  v.  Soltau,  2  S.  &  Stu.  154.  Emery  v.  Grocock,  6  Madd.  54. 

(*)  3  Sugd.  V.  &  P.  25,  42,  43,  10th  0')  Phill.  &  Am.  Ev.  476  ;  Doe  d. 

Ed.;  1  Greenl.  Evid.  §  46,  7th  Ed.;  Graham  v.    Scott,  11  East,   483;  Doe 

Doe  d.  Bowerman  v.  Sybourn,  7  T.  R.  d.  Buidett  v.  Wrighte,  2  B.  &  A.  719, 

2  ;  Keene  d.  Lord  Byron  v.  Deardon,  720. 

8  East,  263,  266  ;  Viscountess  Stafford  (s)  Phill.  &  Am.  Ev.  476  ;  Keene  d. 

v.  Llewellin,  Skin.   77  ;  Goodtitle  d.  Lord  Byron  v.  Deardon,  8  East,  267. 

Jones  v.  Jones,  7  T.   R.  43  ;  Doe  d.  (a)  Hillary  v.   Waller,  12  Ves.   250, 

Reede  v.  Reede,  8  T.  R.   122  ;  R.  v.  251.     See  2  Sugd.  Vend.  &  Pur.   196, 

The  Inhabitants  of  Upton  Gray,  10  B.  loth  Ed. 

&  C.  807,  813,  per  Parke,  J.  ;  England  [b)  Roe  d.  Eberall  v.  Lowe,  I  H.  BL 

d.  Syburn  v.  Slade,  4  T.  R.  6S2  ,  Wil-  446. 


678      SECONDARY    RULES     OF    EVIDENCE. 

the  surrender  of  their  terms  by  trustees  for  terms  of 
years.  In  Lord  Mansfield's  time,  the  courts  seem  to 
have  entertained  notions  upon  it,  which  if  carried 
out  in  practice,  would  have  gone  far  to  enable  them, 
by  their  own  unsupported  authority,  to  subvert  trial 
by  jury  on  the  one  hand,  and  confound  all  distinctions 
between  legal  and  equitable  jurisdiction  on  the  other. 

(c)  We  are  informed  in  the  case  of  Lade  v.  Holford, 

(d)  that  "  Lord  Mansfield  declared  that  he  and  many 
of  the  judges,  had  resolved  never  to  suffer  a  plaintiff 
in  ejectment  to  be  nonsuited  by  a  term  standing  out 
in  his  own  trustee,  or  a  satisfied  term  set  up  by  a 
mortgagor  against  a  mortgagee,  but  would  direct  the 
jury  to  presume  it  surrendered."  There  is  no  objec- 
tion to  the  latter  branch  of  this  proposition,  which  has 
been  always  recognized  in  practice  ;  for,  by  not  assign- 
ing the  term  for  the  benefit  of  the  mortgagee,  whose 
money  he  has  received,  and  afterwards  setting  it  up 
against  him,  the  mortgagor  is  guilty  of  a  fraud ;  so 
that  the  presumption  of  the  surrender  of  the  term,  is 
really  an  application  of  the  legal  maxim  which  pre- 
sumes against  fraud  and  covin,  (e)  and  also  of  the  rule 
which  forbids  a  man  to  take  advantage  of  his  own 
wrong.  (/")  And  it  has  accordingly  been  held,  that 
such  a  presumption  will  not  be  made  in  favor  of  a 
prior  mortgagee,  against  a  subsequent  mortgagee  in 
possession  of  the  title  deeds,  without  notice  of  the  prior 
incumbrance.  (g)  But  the  general  proposition,  never 
to  suffer  a  plaintiff  to  be  non-suited  by    a  term    out- 

(c)  See  3  Sugd.   Vend.   &   Pur.  39,  (e)  See    3    Sugd.  Vend.  &  Pur.   42, 

40,  42,  10th  Ed.  ;  Evans  v.  Bicknell,  6  10th    Ed.,   and  per  Abbott,  C.  J.,   in 

Ves.  174,  184;  Lessee  Lord  Massey  v.  Doe  d.  Putland  v.  Hilder,  2  B.  &  A. 

Touchstone,    I    Sch.   &   L.   67, n.     (c) ;  782,790. 

Wallwyn   v.    Lee,  9  Ves.   31  ;  Doe   d.  (/)  See  infra,  chap.  7. 

Hodsden  v.  Staple   2  T.  R.  696  ;  Doe  (g )  Goodtitle  d.   Norris  v.  Morgan, 

d.  Bristow  v.  Pegge,  1  T.  R.  75S,  n.  1    T.   R.  755  ;  Evans   v.    Bicknell,   6 

(J)  Bull,  N.  P.  110.  Ves.  jun.  174,  184. 


PRESUMPTIVE    EVIDENCE.  679 

standing  in  his  trustees,  is,  at  least  if  taken  in  its  literal 
sense,  inconsistent  with  principle,  and  at  variance  with 
subsequent  authority.  (Ji)  The  surrender  of  a  term  is 
a  question  of  fact  ;  and  the  court  has  not  only  no 
right,  but  it  would  be  most  dangerous,  to  advise  a  jury 
to  presume  such  a  surrender  when  all  the  evidence 
clearly  indicated  that  it  had  never  been  made. 

396.  The  surrender  of  a  term,  like  any  other  fact 
may  be  inferred  from  circumstances.  (7)  It  is  said 
however,  that  the  fact  of  a  term  having  been  satisfied 
is  not,  when  standing  alone,  sufficient  to  raise  the  pre- 
sumption of  a  surrender,  but  that  there  must  be  some 
dealing  with  the  term,  (i) 

397.  Where  acts  are  done  or  omitted,  by  the  owner 
of  the  inheritance  and  persons  dealing  with  him  as  to 
the  land,  which  ought  not  reasonably  to  be  done  or 
omitted  if  the  term  existed  in  the  hands  of  a  trustee, 
and  there  does  not  appear  to  be  anything  that  should 
prevent  a  surrender  from  having  been  made,  a  surren- 
der of  the  term  may  be  presumed.  (/)  But  a  term  of 
years  assigned  to  attend  the  inheritance  will  not,  as 
among  purchasers  or  encumbrancers,  be  presumed  to 
have  been  surrendered,  merely  on  the  ground  of  its 
having  remained,  for  a  series  of  years,  unnoticed  in 
marriage  settlements,  and  other  family  documents ; 
and  the  cases  in  which  a  contrary  doctrine  has  been 
laid  down  must  be  considered  as  overruled,  (;;*)     It 

(A)  Doe  d.    Hodsden   v.    Staple,    2  (k)  Evans   v.    BickneJ,  6  Ves.  jun. 

T.   R.  684  ;  Doe  d.  Bowerman  v.  Sy-  174,    i$$  ;  Day  v.  Williams,  2  C.  &  J. 

bourn,  7  Id.  2  ;  Goodtitle  d.  Jones  v.  460 ;  Doe   d.    Hodsden   v.   Staple,    2 

Jones,    Id.    43    ;    Doe    d.    Reade    v.  T.  R.  684. 

Reade,  8  Id.  118  ;  Doe  d.  Shewen  v.  (/)  Phill.  &  Am.  Evid.  477  ;   1  Phill 

Wroot,  5  Ear,t,  132.  Evid.   490,  10th  Ed, ;  Doe  d.  Putland 

(i)  3  Stark.    Ev.  926,  note  (m),  3rd  v.  Hilder,  2  B.  &  A.  782,  791-2. 

Ed. ;  White  v.  Foljambe,  II  Ves.  351  ;  (m)  See  on  this  subject  Sugden's  V. 

Doe  d.  Brune  v.  Martyn,  8   B.    &   C.  &  P.  vol.  3,  c.  xv.,  10th  Ed.,  where  the 

497  ;  Bartlett  v.  Downes,  3  B.  &  C.  616.  cases   are   collected    and    ably    com 


680     SECONDARY    RULES    OF    EVIDENCE. 

seems,  however,  that  in  equity  a  term  which  has  not 
been  assigned  to  attend  the  inheritance,  and  which  has 
not  been  disturbed  for  a  long  time,  will  be  presumed 
to  be  surrendered,  on  a  question  of  specific  perform- 
ance between  seller  and  purchaser.  (V) 

398.  A  great  change  in  the  law  on  this  subject 
has  been  effected  by  the  stat.  8  &  9  Vict.  c.  1 12,  which, 
after  reciting  that  "  the  assignment  of  satisfied  terms 
has  been  found  to  be  attended  with  great  difficulty, 
delay,  and  expense,  and  to  operate  in  many  cases  to 
the  prejudice  of  the  persons  justly  entitled  to  the 
lands  to  which  they  relate,"  enacts,  in  the  first  section, 
"that  every  satisfied  term  of  years  which,  either  by 
express  declaration  or  by  construction  of  law,  shall 
upon  the  31st  day  of  December,  1845,  De  attendant 
upon  the  inheritance  or  reversion  of  any  lands,  shall 
on  that  day  absolutely  cease  and  determine,  as  to  the 
land  upon  the  inheritance  or  reversion  whereof  such 
term  shall  be  attendant  as  aforesaid,  except  that  every 
such  term  of  years  which  shall  be  so  attendant  as 
aforesaid  by  express  declaration,  although  hereby  made 
to  cease  and  determine,  shall  afford  to  every  person 
the  same  protection  against  every  incumbrance,  charge, 
estate,  right,  action,  suit,  claim,  and  demand,  as  it  would 
have  afforded  to  him  if  it  had  continued  to  subsist, 
but  had  not  been  assigned  or  dealt  with,  after  the  said 
31st  day  of  December,  1845,  and  sna^  f°r  the  purpose 
of  such  protection  be  considered  in  every  court  of  law 
and  of  equity  to  be  a  subsisting  term."  By  the  second 
section  "  every  term  of  years  now  subsisting  or  here- 
after to  be  created,  becoming  satisfied  after  the  said 

merited  on  :  also  Doe  d.  Lord  Egre-  («)  3  Sugd.  V.  &  P.  66,    10th   Ed., 

mont  v.  Langdon,  1?  Q.  B.  711  ;  Gar-  citing  Emery  v.  Grocock,  Madd.  &  G». 

rard  v.  Tuck,  8  C.  B.    231  ;  and   Cot-  54,    and  ex  parte  Holman,  MS.,   24th 

trell  v.  Hughes,  15  C.  B.  532.  July,  1821. 


PRESUMPTIVE    EVIDENCE.  681 

31st  day  of  December,  1845,  anc*  which,  either  by 
express  declaration  or  by  construction  of  law,  shall 
after  that  day  become  attendant  upon  the  inheritance 
or  reversion  of  any  lands,  shall  immediately  upon  the 
same  becoming  so  attendant,  absolutely  cease  and 
determine  as  to  the  land  upon  the  inheritance  or 
reversion  whereof  such  term  shall  become  attendant 
as  aforesaid."  It  has  been  held  that  the  protection  to 
be  afforded  by  this  statute,  is  not  merely  such  as  might 
have  been  set  up  in  a  court  of  law,  but  such  as  that  a 
court  of  equity  would  not  have  restrained  its  being  so 
set  up.  (0) 

399.  Whether,  where  presumptions  are  made  in 
support  of  peaceable  or  beneficial  enjoyment,  the  jury 
are  bound  to  believe  in  the  fact  which  they  find,  has 
been  made  a  question  ;  and  there  certainly  are  author- 
ities both  ways.  (/)  Upon  the  whole,  it  may  perhaps 
be  safely  laid  down  that,  as  in  all  presumptions  of  this 
nature  legal  considerations  more  or  less  predominate 
the  jury  ought  to  find  as  directed  or  advised  by  the 
judge,  unless  the  suggested  fact  appears  absurd  or 
grossly  improbable ;  in  either  of  which  cases,  as  he 
ought  not  to  direct  or  advise  them  to  find  such  a  fact 
so  neither  ought  they  to  find  it. 

(o)  Doe  d.    Cadwalader  v.  Price,  16  per  Richards,  C.  B.  ;  Hillary  v.  Wal- 

M.  &  W.  603  ;  Cottrell  v.  Hughes,  15  ler,  12  Ves.  239,' 252,  per  Sir  William 

C.  B.  532  ;  Plant  v.  Taylor,  7  H.  &  N.  Grant,  M.  R.  ;  Day  v.  Williams,  2  C. 

211  ;  Owen  v.  Owen,  3  H.  &  C.  88.  &  J.    459,   460,    per  Bayley,    B.  ;    St. 

{p)  See  3  Stark.   Ev.   918  and  926,  Mary    Magdalen     v.    The    Attorney 

note  (w),  3rd  Ed.  ;  Doe  d.  Newman  v.  General,  3  Jurist,  N.  S.  695,  per  Lord 

Putland,  3  Sugd   V.  &  P.  6i,  10th  Ed.,  Wensleydale. 


682      SECONDARY    RULES     OF    EVIDENCE* 


SUB-SECTION  VT 

PRESUMPTIONS  FROM  THE  ORDINARY  CONDUCT  Of 
MANKIND,  THE  HABITS  OF  SOCIETY,  AND  THE 
USAGES     OF    TRADE. 

PARAGRAPH 

Presumptions  from  the  ordinary  conduct  of  mankind,  &c.          .         .         .  400 

Miscellaneous  instances 400 

Other  instances                    .                  ........  401 

Date  of  documents 402 

Presumptions  from  the  course  of  business 403 

In  public  offices 403 

In  private  offices             .........  403 

Other  presumptions  from  the  usages  of  trade 404 

400.  The  presumptions  drawn  from  the  ordinary- 
conduct  of  mankind,  the  habits  of  society,  and  the 
usages  of  trade,  are  numerous ;  and  several  of  them 
come  under  the  head  of  presumptions  of  law.  The 
occupation  of  land  carries  with  it  an  implied  agree- 
ment on  the  part  of  the  tenant,  to  manage  the  land 
according  to  the  course  of  good  husbandry  and  the 
custom  of  the  country,  (q)  Rent  paid  by  one  who  is 
in  possession  of  the  land  out  of  which  the  rent  issues, 
is,  in  the  absence  of  evidence  to  the  contrary,  presumed 
to  be  a  rent  service,  (r)  So,  where  the  mere  existence 
of  a  tenancy  is  proved,  a  tenancy  from  year  to  year 
will  be  presumed ;  and  if  the  day  of  its  commence- 
ment does  not  appear,  it  will  be  settled  by  the  custom 
of  the  country,  (s)  Leases  for  uncertain  terms  are 
prima  facie  leases  at  will ;  (7)  but  where  a  tenant  holds 
over  after  the  expiration  of  a  term,  he  impliedly  holds 

{q)  Powley  v.  Walker,  5  T.  R.  373  ;  (s)  Gresley,  Evid.  in  Equity,  368. 

Legh  v.  Hewitt.  4  East,  154.  {()  Roe  d.  Bree  v.  Lees,   2  W.   Bl 

(r\  See  Hardon  v.  Hesketh,  4  H.  &  1171,  1173,  per  De  Grey,  C.  J. 

N.  175. 


PRESUMPTIVE    EVIDENCE.  683 

subject  to  all  the  covenants  in  the  lease  which   are 

applicable  to  his  new  situation,  («)    Where  a  servant, 

at  least  a  servant  in  husbandry,  or  a  menial  servant, 
is  hired  generally,  without  any  stipulation  as  to  time, 

the  hiring  will  be  presumed  to  have  been  for  a  year, 
unless  there  are  circumstances  to  raise  a  presumption 
to  the  contrary,  (v)  A  promise  to  marry  generally, 
is  interpreted  as  a  promise  to  marry  within  a  reasona- 
ble time ;  (V)  and,  on  proof  of  a  regular  marriage  per 
verba  de  prsesenti,  consummation  is  implied,  (jj/)  The 
important  rule,  that  confessions  and  other  forms  of 
self-disserving  evidence  are  receivable  against  the  party 
who  makes  them,  (z)  seems  founded  on  this  principle. 
To  this  class  belong  also  many  presumptions  of  knowl- 
edge. Thus  a  man  is  presumed  to  know  what  deeds 
he  has  executed,  (a)  although  probably  in  many  cases 
the  presumption  is  not  a  strong  one  ;  the  members  of 
a  club,  (6)  or  a  stock  exchange,  (V)  are  presumed  to 
be  acquainted  with  its  rules  ;  and  it  is  said  that  parties 
claiming  under  a  lease  are  presumed  to  know  the  title 
under  which  they  took,  and  the  circumstances  con- 
nected with  it.  (d)  ' 

401.  There  are  other  presumptions  derived  from 

(u)  Digby    v.     Atkinson,    4    Camp.  Hagg.  54,  65,  66. 

275  »  Johnson  v.  St.  Peter's,  Hereford,  (z)  See  infra,  chap.  7. 

4  A.  &  E.  520.     See  Roe  d.  Jordan  v.  (a)  Palmer  v.  Newell,  2  Jurist,  N.  S. 

Ward,  1    H.    Bl.   97;    and  Roberts  v.  268. 

Hayward,  3  C.  &  P.  432.  (b)  Raggett    v.    Musgrave,    2    C.    & 

(v)  3  Stark.  Ev.  999,  3rd  Ed.  ;  Chitt.  P.  556:    Alderson  v.  Clay,    1    Stark. 

Contr.  536,  9th  Ed.  405. 

(x)  Potter  v.  DeRoos,  1  Stark.  82  ;  (c)  Stewart  v.  Cauty,  8  M.  &  W.  160- 

Phillips  v.  Crutchley,  3  C  &  P.  178  ;  Mitchell  v.  Newhall,  15  Id.  309. 

I  Moore  &  P.  239.  (d)  Butler  v.  Lord  Portarlington,  I 

(y)  Dalrymple     v.     Dalrymple,     2  Con.  &  L.  24. 

1  But  it  was  said  in  Davis  v.  Davis,  26  Cal.  22,  that  it  is 
not  true  that,  in  all  cases,  a  man  claiming  to  own  land  is 
bound  to  know  even  the  state  of  his  own  title,  and  see  note  I, 
p.  642. 


684     SECONDARY    RULES    OF    EVIDENCE. 

the  ordinary  conduct  of  mankind.  Thus,  the  cancel- 
ling, (e)  or  taking  the  seals  off  (_/")  a  deed,  or  tearing 
a  will  in  pieces,  (g)  is  prima  facie  evidence  of  revoca- 
tion. So,  where  a  will,  duly  executed,  remains  in  the 
custody  of  the  testator,  but  can  not  be  found  after  his 
death,  the  law  presumes  that  the  will  has  been  de- 
stroyed by  the  testator  with  the  intention  of  revoking 
it.  (//)  But  this  presumption  may  be  rebutted  by 
evidence  tending  to  prove  a  contrary  intention,  e.  g. 
by  declarations  of  the  testator,  showing  an  intention  to 
adhere  to  the  will.  (Y) 

402.  It  may  be  stated  as  a  general  rule  that,  prima 
facie,  documents  should  be  taken  to  have  been  made 
or  written  on  the  day  they  bear  date.  (_/)  !  This  has 
been  held  to  apply  to  letters,  (/£)  bills  of  exchange 
and  promissory  notes,  (/)  and  the  indorsements  on 
them,  {jit)   and  also  to  bankers'    checks.  (11)      So,  a 

(<?)  Alsager  v.    Close,  io   M.  &  W.  Q.  B.  435  ;  Yorke  v.  Brown,  10  M.  & 

576.  W.  7S  ;  Morgan  v.  Whitmore,  6  Exch. 

(/)  Latch.  226  ;  Price  v.  Powell,  3  716. 

H.  &N.341.  (k)  Hunt   v.    Massey,    5    B.  &   Ad. 

(g)  In  the  goods  of  Colberg,  2  Curt.  902  ;  Goodtille  d.  Baker  v.  Milburn,  2 

132.  M.  &  W.   853  ;    Potez  v.   Glossop,    2 

(//)  Brown  v.  Brown,  8  E.  &  B.  876  ;  Exch.  igi.     See  however  the  observa- 

Finch  v.   Finch,  L.    Rep.,   1   P.  &  D.  tions  of  Lord  Wensleydale  in   Butler 

371.  v.  Lord  Mountgarrett,  7  Ho.  Lo.  Cas. 

(*)  Whiteley  v.  King,  17  C.   B.,  N.  633,  646. 

S.  756  ;  Keen  v.  Keen,  L.  Rep.,  3   P.  (/)  Anderson  v.    Weston,  6   Bingh. 

&  D.  105.  N.  C.  296. 

(/)  Smith  v.  Battens,  1  Moo.  &  Rob.  (m)  Smith  v.  Battens,  1  Moo.  &  R. 

341  ;  Anderson  v.  Weston,  6  Bing.  N.  341. 

C.  296  ;  Sinclair  v.  Baggaley,  4   M.  &  («)  Laws  v.   Rand,   3   C.   B.,  N.  S. 

W.   312;    Potez   v.   Glossop,    2   Exch.  442. 
191  ;  Malpas    v.   Clements;   19   L.   J., 

1  But  parol  testimony  is  admissible  to  show  that  one  was,  in 
fact,  executed  on  a  different  day.  Abrams  v.  Pomeroy,  13  111. 
133;  Dodge  v.  Hopkins,  24  Wis.  630;  Meldrum  v.  Clarke,  1 
Morr.  (Iowa)  130;  Breck  v.  Cole,  4  Sandf.  (N.  Y.)  79.  And 
an  impossible  date  raises  a  presumption  of  ante  or  post  dating, 
nut  of  alserauou.      Davis  v.  Loftin,  6  Tex.  4S9. 


PRESUMPTIVE    EVIDENCE.  685 

deed  is  presumed  to  have  been  executed  (0)  and  de- 
livered,  (p)  on  the  day  it  is  dated.  This  presumption 
is,  however,  easilv  displaced,  at  least  as  far  as  it  relates 
to  the  precise  date  ;  and  the  rule  itself  is  subject  to 
exceptions,  (y) 

403.  Many  presumptions  are  drawn  from  the 
usual  course  of  business  in  public  offices.  Thus,  if  a 
letter  is  put  into  a  post-office,  that  is  prima  facie  proof, 
until  the  contrary  appears,  that  the  party  to  whom  it 
is  addressed  received  it  in  due  course,  (r)  1  By  some 
statutes,  this  sort  of  proof  has  been  made  conclusive 
in  certain  cases  where  the  letter  is  registered,  (Y)  and 
in  some  even  where  it  is  not.  (7)  Presumptions  of 
this  kind  are  also  made  from  the  course  of  business  in 
private  offices ;  such  as  those  of  merchants,  (zi)  attor- 
neys, (v)  &c. 

404.  There  are  several  other  presumptions  drawn 
from  the  usages  of  trade.  Thus,  where  a  partner- 
ship is  found  to  exist  between  two  persons,  but  there 

(e)  Anderson  v.   Weston,  Bingh.  N.  Kieran    v.    Johnson,    I    Stark.    109  ; 

C.  296,  300.  Stocken  v.  Collen,  7  M.  &  W.  515. 

(p)  Stone  v.  Grubbam,   1  Rol.  3,  pi.  (s)  See  6  &  7  Vict,  c.  18,  ss.  100  & 

5  ;  Oshley  v.  Hicks,  Cro.  Jac.  263.  101  ;  28  Vict.  c.  36,  s.  9,  &c. 

(g)  Anderson  v.   Weston,  6  Bingh.  (/)  See  19  &  20  Vict.  c.  47,  ss.  53-4 

N.  C.  296,  301  ;  Sinclair  v.  Baggaley,  25  &  26  Vict.  c.  89,  ss.  62,  63,  &c. 

4  M.  &  W.  312  ;  Gibson  v.  King,  Car.  (u)  Hetherton  v.   Kemp,   4    Camp. 

6  M.  458  ;  Wright  v.  Lainson,  2  M.  193  ;  Toosey  v.  Williams,  1  Mood.  & 
&  W.  739  ;  Edwards  v.  Crook,  4  Esp.  M.  129  ;  Hawkes  v.  Salter,  4  Bingh. 
39.  715  ;    Prit't   v.    Fairclough,    3    Camp. 

(r)  Kufh  v.  West,  3  Esp.  54  ;  War-      305  ;  Hagedorn  v.  Reid,  Id.  379. 
ren  v.  Warren,   1   C   M.  &   R.   250  ;  (v)  Doe  d.   Patteshall  v.  Turford,  3 

B.  &  Ad.  890. 

1  But  see  to  the  contrary,  First  National  Bank  of  Belle- 
fonte  v.  McManigle,  69  Pa.  St.  156,  which  holds  that  there  is 
no  such  presumption, — distinguishing  Tanner  v.  Hughes,  53 
Pa.  St.  289. 

There  is  no  presumption  that  a  drop  letter  was  deposited, 
in  the  post-office  on  the  day  of  the  date  of  its  postmark. 
Shelburne  Falls,  &c.  Bank  v.  Townsley,  102  Mass.  177. 


686      SECONDARY    RULES    OF    EVIDENCE. 

is  no  evidence  to  show  in  what  proportions  the)'  are 
interested,  it  is  presumed  that  they  are  interested  in 
equal  moieties,  (w)  So,  where  a  factor  in  this  coun- 
try buys  or  sells  in  his  own  name  for  a  foreign  prin- 
cipal, the  right  to  sue,  and  the  liability  to  be  sued  on 
the  contract,  are  presumed  to  be  exclusively  in  the 
factor,  and  not  in  the  principal,  (x)  So,  bills  of  ex- 
change and  promissory  notes  are  presumed  to  have 
been  given  for  consideration,  (y)  And  a  bill  of  ex- 
change, in  the  absence  of  proof  to  the  contrary, 
is  presumed  to  have  been  accepted  within  a  reason- 
able time  after  its  date,  and  before  it  came  to  ma- 
turity, (z) 


SUB-SECTION    VII. 

PRESUMPTION    OF     THE     CONTINUANCE     OF     THINGS    IN 
THE    STATE    IN    WHICH    THEY    HAVE    ONCE    EXISTED. 

PARAGRAPH 

Presumption  of  the  continuance  of  things  in  the  state  in  which  they 

have  once  existed        ..........  405 

Presumption  of  the  continuance  of  debts,  &c.     .....  406 

Presumption    of  payment  ....  .         .  406 

Presumption  of  release     .  ......  406 

Presumption  of  revocation  or  surrender  ....  407 

Presumption  of  the   continuance  of  human  life  ....  408 

Presumption  of  death  from  seven  years'  absence       .         .         .  409 
Presumption  of  survivorship  where    several   persons  perish  by 

a  common  calamity  ........  410 

405.   It  is  a  very  general  presumption  that  things 
once  proved  to   have  existed  in  a  particular  state,  are 

(w)  Farrar  v.  Beswick,  1  Moo.  &  R.  (2)  Roberts  v.  Bethell,  12  C.  B.  778. 

527,  per  Parke,  B.  For    other    instances    see    Carter    v. 

(x)  Russell  on  Merc.  Agency,  2nd  Abbott,  1  B.  &  C.  444  ;    Houghton  v. 

Ed.,  200,  233.  Gilbart,  7  C.  &  P.  701  ;   Leuckhart  v. 

(y)  Byles  on  Bills,  2   and   108,  Sth  Cooper,  7  C.  &  P.  119;   Cunningham 

Ed.  v.  Fonblanque,  6  C.  &  P.  44. 


PRESUMPTIVE    EVIDENCE.  687 


/ 


to  be  understood  as  continuing  in  that  state,  until 
the  contrary  is  established  by  evidence,  either  direct  or 
circumstantial.1     Thus,  where  seizen  of  an  estate  has 

1  The  presumption  that  where  a  state  of  affairs  or  of  mat- 
ters of  fact  is  once  shown  to  exist,  it  continues  until  the 
contrary  is  shown;  Brown  v.  Burnham,  28  Me.  38;  Brown  v. 
King,  5  Mete.  (Mass.)  173  ;  O'Neil  v.  New  York,  &c.  Mining 
Co.,  3  Nev.  141  ;  Bell  v.  Young,  1  Grant  (Pa.)  Cas.  175  ;  Farr 
v.  Payne,  40  Vt.  615  ;  or  that  relations  once  shown  to  exist 
between  parties,  continue,  until  some  change  is  shown  to 
have  occurred  (Eames  v.  Eames,  41  N.  H.  177  ;  Montgom- 
ery Plank-Road  Co.  v.  Webb,  27  Ala.  618;  Barelli  v. 
Lytle,  4  La.  Ann.  558  ;  Sullivan  v.  Goldman,  19  Id.  12  ; 
Mullen  v.  Pryor,  12  Mo.  307  ;  Leport  v.  Todd,  32  N.  J.  L.  124  ; 
People  v.  McLeod,  1  Hill  (N.  Y.)  377  ;  Hood  v.  Hood,  2  Grant 
(Pa.)  Cas.  229),  is  one  of  the  most  curious  and  interesting 
raised  by  the  law.  By  virtue  of  such  presumption  courts  will, 
for  example,  presume  the  residence  of  a  person  to  continue  in 
a  place  where  it  is  shown  to  have  been  at  any  time,  until  the 
contrary  is  shown.  Prather  v.  Palmer,  4  Ark.  456  ;  Randolph 
v.  Easton,  23  Pick.  (Mass.)  242  ;  Wilmington  v.  Burlington, 
4  Id.  174;  Kilburn  v.  Bennet,  3  Mete.  (Mass.)  199;  or,  the 
minority  of  a  party  to  continue  until  his  majority  is  shown; 
Irvine  v.  Irvine,  5  Min.  61;  or,  it  being  shown  that  a  decree 
in  chancery  has  been  rendered,  and  it  not  being  made  to  appear 
that  it  has  been  annulled,  reversed,  or  set  aside,  it  will  be 
presumed  that  it  still  remains  in  full  force;  Murphy  v.  Orr, 
32  111.  489  ;  or,  until  the  government  of  the  country  recog- 
nizes the  independence  of  a  foreign  colony,  the  courts  are 
bound  to  consider  the  former  state  of  things  unchanged; 
Gelston  v.  Hoyt,  1  Johns.  (N.  Y.)  543  ;  but  there  is  no  pre- 
sumption that  a  woman  is  married  until  this  is  shown  by  evi 
dence,  but,  once  proved,  a  state  of  coverture  is  presumed  to 
exist,  until  the  contrary  is  shown  ;  Erskine  v.  Davis,  25  111. 
251 ;  nor  does  the  fact  that  a  rule  of  law  or  equity  is  embodied 
in  the  Revised  Statutes  of  a  state,  raise  a  presumption  that  such 
was  not  law  before  the  enactment  of  those  statutes.  Nun- 
nally  v.  White,  3  Mete.  (Ky.)  584. 

That  a  holograph  script  was  seen  among  the  valuable 
papers  and  effects  of  the  decedent  eight  months  before  his 
death  is  no  evidence  that  it  was  found  there  at  or  after  his 
death.  Adams  v.  Clark,  8  Jones  (N.  C.)  L.  56.  And  although 
a  state  of  war  proved  to  have  existed  three  years  ago  is  pre- 
sumed   in    law   to  be    still    existing   unless   the  contrary   be 


688     SECONDARY    RULES     OF    EVIDENCE. 

been  shown,  its  continuance  will  be  presumed ;  (a)  as 
also  will  that  of  a  parochial  settlement,  (J?)  of  the  au- 
thority of  an  agent,  (V)  &c.  And  there  are  several  in- 
stances to  be  found  in  the  books,  where  this  presump- 
tion has  been  held  stronger  than  the  presumption  of 
innocence,  or  than  presumptions  derived  from  the 
course  of  nature.  Thus,  on  an  indictment  for  libel- 
ling a  man  in  his  capacity  of  public  officer,  on  proof 
of  the  prosecutor  having  held  the  office  previous  to 
the  publication  of  the  libel,  his  continuing  to  do  so 
was  presumed.  {d)  And  it  is  said  that  where  adul- 
tery has  been  proved,  its  continuance  will  be  pre- 
sumed while  the  parties  live  under  the  same  roof,  (e) 
So,  although  the  law  in  general  presumes  against 
insanity,  yet  where  the  fact  of  insanity  has  been  shown 
its   continuance   will    be  presumed ;    and   the   proof 

(a)  Wrotesley  v.  Adams,  Plowd.  193  ;  (c)  See  Smout  v.  Ilbery,  10  M.  & 

Smith  v.  Stapleton,  Id.  431 ;  Cockman      W.  1. 
V.  Farrer,  T.  Jones,  181.  (d)  R.  v.  Budd,  5  Esp.  230. 

(6)  R.  v.  Tanner,  1  Esp.  304.  (e)  Turton  v.  Turton,  3    Hagg.  N. 

R.  350. 

shown,  yet  the  law  indulges  no  presumption  at  any  given  time 
that  it  will  continue  for  three  years  longer,  or  that  it  will 
continue  for  any  definite  term;  Covert  v.  Gray,  34  How.  (N. 
Y.)  Pr.  450;  nor  will  the  fact  that  a  plaintiff  was  frequently 
seen  to  purchase  groceries  from  the  defendant,  who  was  the 
only  grocer  in  the  village,  warrant  the  presumption  that  he 
purchased  his  entire  supply  from  him,  so  as  to  authorize 
proof  of  the  amount  of  groceries  necessary  for  his  family,  or 
actually  consumed  by  them  during  the  time  such  purchases 
were  being  made.     Scott  v.  Coxe,  20  Ala.  294. 

A  defendant,  to  avail  himself  of  an  attachment  in  his 
hands  by  a  third  person  of  a  note  sued  on,  must  prove  that 
it  is  still  in  force  ;  plaintiff  need  not  show  that  it  is  no  longer 
so;  Bacon  v.  Smith,  2  La.  Ann.  441  ;  nor  is  it  to  be  assumed 
that  friendly  letters  between  intimate  connections  form  a 
series,  nor  is  there  any  presumption  that  the  subject  of  such 
successive  letters  is  the  same.  Strong  v.  Strong,  1  Abb.  (N 
V.)  Pr.  N.  S.  233. 


PRESUMPTIVE    EVIDENCE.  689 

of  a  subsequent  lucid  interval  lies  on  the  party  who 
asserts  it.  (/") ' 

406.  There  are  two  particular  cases  which  will  re 
quire  special  consideration  :  namely,  the  presumptioi 
of  the  continuance  of  debts,  obligations,  &c.  until  dis 
charged  or  otherwise  extinguished ;  and  the  presump 
tion  of  the  continuance  ol  human  life.     With  respect 
to  the  former  of  these — a  debt  once  proved  to  have 
existed,  is  presumed  to  continue  unless  payment,  or 
some  other  discharge,  be  cither  proved,  or  established 
by  circumstances,  (g)     A  receipt  under  hand  and  seal 
is  the  strongest  evidence  of  payment,  for  it  amounts 
to  an  estoppel,  conclusive  on  the  party  making  it ;  (/i) 
but  a  receipt  under  hand  alone,  (7)  or  a  verbal  admis- 
sion of  payment,  (/£)  is  in  general  only  prima  facie  evi- 
dence of  it,  and  may  be  rebutted.     Of  the  presump- 
tive proofs  of  payment,  the  most  obvious  is  that  no 
demand   has  been  made  for  a  considerable  time  ;  and 
previous  to  3  &  4  Will.  4,  c.  42,  s.  3,  (/)  the  courts  had. 

(/)  See   Hanks  v.   Goodfellow,   L.  (A)  Gilb.  Evid.  158,  4th  Ed. 

Rep.,  5  Q.  B.  549,  570  ;  Butl.  Co.  Litt.  (0  1   Greenl.  Ev.  §§  212   and  305, 

246b,  note  (1);  Gresl.  Ev.  in  Eq.  368  ;  7th  Ed. 

Att.-Gen.  v.  Parnther,  3  Bro.  C.C.  441  ;  {k)  Tayl.  Ev.  §§   171   and   788,4th 

White  v.  Wilson,  13  Ves.  88.  Ed. 

{g)  Jackson  v.  Irvin,  2  Camp.  50.  (/)  Which  enacts,  that  all  actions  for 

Also  in  the  Roman  law,  Cod.  lib.  4,  tit.  debt  for  rent  upon  an  indenture  of  de- 

19,  1.  1.  mise,  all  actions  of  covenant  or  debt 

1  A  person  proved  to  have  been  insane  at  any  time  is  pre- 
sumed to  remain  so  until  the  contrary  is  proved.  Sprague  v. 
Duel,  1  Clarke  (N.  Y.)  90  ;  Saxon  v.  Whitaker,  30  Ala.  237  ; 
Breed  v.  Pratt,  18  Pick.  (Mass.)  115  ;  Ballew  v.  Clark,  2  Ired. 
(N.  C.)  L.  23;  Titlow  v.  Titlow,  54  Pa.  St.  216;  Ripley  v. 
Babcock,  13  Wis.  425.  But  the  rule  does  not  apply  to  insanity 
caused  by  a  violent  disease.  Hix  v.  Whittemore,  4  Mete. 
(Mass.)  545. 

The  general  competency  of  a  testator  not  being  questioned, 
the  burden  of  proving  incompetency  at  the  time  a  will  was 
executed  is  on  the  contestant,  and  affirmative  proof  is  requi- 
site.    Allen  v.  Public  Administrator,  1  Bradf.  (N.  Y.)  378. 

44 


690      SECONDARY    RULES     OE    EVIDENCE. 

by  analogy  to  the  Statute  of  Limitations,  established 
the  artificial  presumption,  that  where  payment  of  a 
bond  or  other  specialty  was  not  demanded  for  twenty 
years,  and  there  was  no  proof  of  payment  of  interest, 
or  any  other  circumstance  to  show  that  it  was  still  in 
force,  payment  or  release  ought  to  be  presumed.  (;/z) 
Thus,  in  Colsell  v.  Budd,  (11)  it  was  laid  down  by 
Lord  Ellenborough,  that  "  after  a  lapse  of  twenty 
years,  a  bond  will  be  presumed  to  be  satisfied ;  but 
there  must  either  be  a  lapse  of  twenty  years  or  a  less 
time,  coupled  with  some  circumstance  to  strengthen 
the  presumption."  So,  the  fact  of  payment  may  be 
presumed  from  any  other  circumstance  which  renders 
that  fact  probable  ;  (o)  as,  for  instance,  the  settlement 
of  accounts  subsequent  to  the  accruing  of  the  debt,  in 
which  no  mention  is  made  of  it.  (/)*  So,  where  a 
landlord  gives  a  receipt  for  rent  due  up  to  a  certain 
day,  all  former  arrears  are  presumed  to  have  been  paid  ; 
for  it  is  likely  that  he  would  take  the  debt  of  longest 
standing  first.  (q~)  So  it  is  said,  that  where  there  is  a 
competition  of  evidence  on  the  question,  whether  a 
security  has  or  has  not  been  satisfied  by  payment,  the 
possession  of  the  uncancelled  security  by  the  claimant 
ought  to  turn  the  scale  in  his  favor,  since  in  the  ordin- 
ary course  of  dealing  the  security  is  given   up  to  the 

upon  any  bond  or  other  specialty,  and  («)  I  Camp.  27.  See  Oswald  v.  Legh, 

all  actions  of  debt  or  scire  facias  upon  1  T.  R.  270. 

any  recognizance,  shall  be  commenced  (0)  3    Stark.  Ev.  823,  3rd  Ed.     See 

and  sued  within  ten  years  after  the  end  Cooper  v.  Turner,  2  Stark.  Ev.  497  ; 

of  the  then  session  of  Parliament,  or  Lucas   v.  Novisilienski,   1    Esp.  296; 

within  twenty  years  after  the  cause  of  Sellen  v.  Norman,  4  C.  &  P.  80  ;  Pfiel 

action,  but  not  after.  v.  Vanhatenberg,  2  Camp.  439. 

(»*)  Oswald  v.  Legh,  I   T.  R.  270 ;  (/> )  Colsell  v.  Budd,  1   Camp.  XJ. 

Washington  v.  Brymer,  Peake's   Ev.,  See   Dig.  lib.  22,  tit.  3,  1.   26,  referred 

\pp.  xxv.  to  ante,  §  320. 

(-/)  Gilb.  Ev.  157,  4th  Ed. 

1  Sec  ante,  p.  621,  note  1. 


PRESUMPTIVE    EVIDENCE.  691 

party  who  pays  it.  (r)  And  where  land  is  conveyed 
to  trustees  in  trust  to  pay  debts,  with  remainder  over, 
payment  of  the  debts  may  be  presumed  from  long 
possession  by  the  remainderman,  joined  with  other 
circumstances,  (s) 

Release  as  well  as  payment  may  be  inferred  from 
circumstances.  (/) 

407.  On  the  same  principle,  although  a  revocation 
or  surrender  will  not  be  presumed,  («)  it  may  be  in- 
ferred from  circumstances.  In  Doe  d.  Brandon  v.  Cal- 
vert, (x)  where  in  answer  to  an  ejectment,  the  defen- 
dant set  up  a  mortgage  term  made  to  a  stranger  eigh- 
teen years  before,  and  neither  accounted  for  his  pos- 
session of  it,  nor  proved  any  payment  of  interest  under 
the  mortgage ;  and  the  judge  advised  the  jury  to  pre- 
sume a  surrender  of  the  mortgage  term,  the  verdict 
was  set  aside  by  the  court ;  and  Mansfield,  C.  J.,  said  : 
"  There  is  no  circumstance  here  to  lead  to  the  suppo- 
sition that  the  deed  was  surrendered,  except  the  eigh- 
teen years'  time  ;  if  the  deed  had  been  assigned  or  sur- 
rendered, the  instrument  whereby  it  had  been  as- 
signed or  surrendered  ought  to  be  in  the  possession 
of  the  plaintiff.  No  reason  is  assigned  to  account 
why  it  should  not  be  there  ;  the  question  is  therefore 
whether,  from  the  circumstance  of  the  eighteen  years 
only,  a  surrender  can  be  presumed.  I  have  never 
known  any  case,  in  which  a  shorter  time  than  twenty 
years  has  been  held  sufficient  to  ground  the  presump- 
tion of  a  surrender;  and  that  is  often  too  short  a 
time,  for  many  times  receipts  and  documents  may  be 

(r)  Per  Lord  Ellenborough,   Brem-  Ev.,    App.    xxv. ;    Pickering  v.    Lord 

bridge  v.  Osborn,  i   Stark.  374  ;   and  Stamford,  2  Ves.  jun.  583 ;  Reeves  v. 

«ee  Dig.  lib.  22,  tit.  3,  1.  24  ;  and  Mas-  Brymer,  6  Id.  516  ;    Motz  v.  Moreau, 

Card,  de  Prob.  Concl.  477.  13  Mo.  P.  C.  C.  376. 

(j)  Anon.,  Vin.  Abr.  Ev.,  Q.  a.  pi.  7.  («)  Moreton  v.  Ilorton,  2  Keb.  483 

(/)  Washington   v.  Brymer,  Peake's  (x)  5  Taunt.  170. 


692     SECONDARY    RULES     OF    EVIDENCE. 

lost.  But  it  is  enough  to  say,  that  twenty  years  is  the 
time  prescribed  by  act  of  Parliament  as  a  bar  to  an 
ejectment,  by  analogy  to  which  the  doctrine  of  pre- 
sumption has  gone  ;  and  we  might  as  well  say  a  pre- 
sumption might  be  raised  by  five  years  in  assumpsit, 
or  three  years  in  trespass,  as  eighteen  years  in  eject- 
ment." 

408.  We  next  proceed  to  the  presumptions  re- 
specting the  continuance  of  human  life.  There  is 
certainly,  in  the  English  law.no  prsesumptio  juris  rela- 
tive to  the  continuance  of  life  in  the  abstract ;  and  in 
one  case  the  Court  of  Oueen's  Bench  said,  that  the 
law  did  not  recognize  the  impossibility  of  a  person 
who  was  alive  in  the  year  1834,  being  still  alive  in  the 
year  1837.  (jj/)  The  death  of  any  party  once  shown 
to  have  been  alive,  is  matter  of  fact  to  be  determined 
by  a  jury ;  and  as  the  presumption  is  in  favor  of  the 
continuance  of  life,  the  onus  of  proving  the  death  lies 
on  the  party  who  asserts  it.  {£)  l 

409.  The  fact  of  death  may,  however,  be  proved 
by  presumptive  as  well  as  by  direct  evidence,  (a) 
When  a  person  goes  abroad,  and  has  not  been  heard 
of  for  a  longtime, the  presumption  of  the  continuance 
of  life  ceases,  at  the  expiration  of  seven  years  from  the 
neriod  when  he  was  last  heard  of.  (6)2     And  the  same 

(/)  Atkins  v.  Warrington,  I  Chitty,  (i>)  Per  Lord  Ellenborough,  Doe  d 

Plead.   258,  6th  Ed.     See  also  Benson  George   v.   Jesson,    6    East,    80,    84  ; 

v.  Olive,  2  Str.  920.  Hopewell  v.  De  Pinna,  2  Camp.  113  ; 

(z)  Smartle    v.    Penhallow,    2    Lord  Doe    d.  Banning  v.  Griffin,   15    East, 

Raym.   999  ;  Throgmorton  v.  Walton,  393  ;  Lee  v.  Willock,  6  Ves.  605  ;  Rust 

2  Ro.  461  ;  Wilson  v.  Hodges,  2  East,  v.  f>aker,  S  Sim.  443  ;  Dixon  v.  Dixcn, 

312.  3  Br  .    C.  C.   510;  Ommaney  v.   Stil- 

(a)  Thorn  v.    Rolff,    Dy.    185a,   pi.  well,  23  Beav.  332  ;  In  the   goods  of 

65  ;  Anders.    20,    pi.    42  ;  Webster  v.  How,  1  Swab.  &  T.  53. 
Birchmore,  13  Ves.  362. 

1  Duke  of  Cumberland  v.  Graves,  9  Barb.   595  ;    Gilleland 
v.  Martin,  3  McLean,  490;  Ashbury  v.  Sanders,  8  Cal.  62. 
*  A  person    of  whom   nothing   has   been   heard  for  seven 


PRESUMPTIVE    EVIDENCE.  693 

rule  holds,  generally,  with  respect  to  persons  who  are  ab- 
sent from  their  usual  places  of  resort,  and  of  whom  no 
account  can  be  given.  (V)     This  is  incorrectly  spoken  of 

(c)  Doe  d.  Lloyd  v.  Deakin,  4  B.  &  1  W.  Black.  404  ;  Bailey  v.  Hammond, 

A.  433.     See   the  judgment  of  Lord  7  Ves.    590  ;    Doe   d.  France   v.  An- 

Ellenborough   in    Doe    d.    George    v.  drews,  15  Q.  B.  756. 
Jesson,  6  East,  S5  ;  Rowe  v.  Haf.land, 

years,  or  more,  will  be  presumed  to  be  dead.  Crawford  v. 
Elliott,  1  Houst.  (Del.)  465  ;  Stevens  v.  McNamara,  36  Me. 
176;  Tilley  v.  Tilley,  2  Bland  (Md.)  436;  Flynn  v.  Coffee,  12 
Allen  (Mass.)  133;  Smith  v.  Knowlton,  11  N.  H.  191  ;  White- 
side's appeal,  23  Pa.  St.  114;  Moffit  v.  Varden,  5  Cranch  C. 
Ct.  658;  Whiting  v.  Nichol,  46  111.  230;  Wainbourgh  v. 
Schank,  2  N.  J.  L.  (1  Pen.)  229;  Osborn  v.  Allen,  26  N.  J.  L. 
(2  Dutch.)  38S;  Smith  v.  Smith,  5  N.  J.  Eq.  (1  Hals.)  ;  Eagle 
v.  Emmet,  4  Bradf.  (N.  Y.)  117  ;  3  Abb.  Pr.  218  ;  Burr  v.  Sim, 
4  Whart.  (Pa.)  450;  Bradley  v.  Bradley,  Id.  173;  Primm  v. 
Stewart,  7  Tex.  178  ;  Cofer  v.  Thurmond,  1  Ga.  538;  Spurr  v. 
Taimball,  1  A.  K.  Marsh.  (Ky.)  278;  Stinchfield  v.  Emerson 
52  Me.  465;  Newman  v.  Jenkins,  10  Pick.  (Mass.)  515  ;  Lomig 
v.  Sternman,  1  Mete.  (Id.)  204;  Brown  v.  Jewett,  18  N.  H. 
230;  Forsaith  v.  Clark,  21  N.  H.  (1  Fost.)  409;  Winship  v. 
Connor,  42  N.  H.  341  ;    Holmes  v.  Johnson,  42  Pa.  St.  159. 

The  presumption  of  life  of  a  person,  once  proved  to  be  liv- 
ing, continues  until  the  contrary  is  shown.  Letts  v.  Brooks, 
Hill  &  D.  Supp.  (N.  Y.)  36.     See  ante,  note  1,  p.  687. 

After  a  possession  of  twenty  years  the  court  will,  to  quiet 
the  title  of  the  possessor,  presume  that  a  person  absent  beyond 
the  seas,  died  at  the  time  when  he  was  last  heard  from,  and 
that  the  possessor  has  a  title  under  the  administrator  of  the 
absentee.     Godfrey  v.  Schmidt,  1  Cheves  (S.  "C.)  Part  2,  57. 

Where  dower  has  not  been  claimed  for  thirty-five  years 
after  the  date  of  a  deed,  it  raises  a  presumption  that  the  parties 
entitled  to  it  are  not  living.     Ross  v.  Clore,  3  Dana  (Ky.)  1S9. 

Where  the  issue  is  whether  there  was  ever  such  a  person  as 
A,  under  whom  the  plaintiffs  claim,  it  is  not  necessary  for  the 
defendants  to  offer  plenary  proof  that  no  such  person  ever  ex- 
isted, where  the  plaintiffs  do  not  prove  the  fact  that  he  did 
exist.     Phelps  v.  Hughes,  1  La.  Ann.  320. 

Courts  will  presume  the  death  of  a  testator,  upon  the  pro- 
duction of  letters  testamentary.  Tisdale  v.  Conn.,  &c.  Ins. 
Co.,  26  Iowa,  170. 

As  to  what  are  not  presumptions  of  death,  it  has  been  held 


694      SECONDARY    RULES    OF    EVIDENCE. 

in  some  books  as  a  presumption  of  law :  (V)  but  it  is 
in  truth  a  mixed  presumption,  said  to  have  been  adopt- 
ed by  analogy  to  the  statutes  i  Jac.  i,  c.  1 1,  s.  2,  (e)  and 
19  Car.  2,  c.  6,  s.  2, — the  former  of  which  exempts  from 
the  penalties  of  bigamy,  any  person  whose  husband  or 
wife  shall  be  continually  remaining  beyond  the  seas  by 
the  space  of  seven  years  together,  or  whose  husband  or 
wife  shall  absent  him  or  herself,  the  one  from  the 
other,  by  the  space  of  seven  years  together,  in  any 
parts  within  the  King's  dominions,  the  one  of  them 
not  knowing  the  other  to  be  living  within  that  time  ; 
and  the  latter  of  which  enacts,  that  persons  in  leases 
for  lives,  who  shall   remain  beyond  the  seas,  or  else- 

(d)  See  the  judgment  in  Nepean  v.  such   person   for   the   space   of  seven 

Doe  d.  Knight,  2  M.  &  W.  S94.  years    then    last   past,    and    shall   not 

(if)  This  statute   was   repealed   by  9  have  been  known  by  such  person  to 

Geo.   4,   c.  31,    s.    22,   which    exempts  be    living   within    that    time."       This 

from    the    penalties    of  bigamy   "  any  statute  was  in  its  turn  repealed  by  24 

person    whose  husband  or    wife  shall  &  25  Vict.  c.  95,  and  re-enacted  by  24 

have    been    continually    absent    from  &  25  Vict.  c.  100,  s.  57. 

that  such  presumption  does  not  arise  from  the  facts  that  a  per- 
son, twenty-two  years  ago,  was  in  "bad  health,"  and  would, 
if  now  living,  be  eighty  years  old,  even  though,  on  recent  in- 
quiry, his  name  was  not  known  at  the  post-office  of  a  large 
city  (his  former  residence),  nor  inserted  in  its  directory — there 
being  no  evidence  of  the  sort  or  degree  of  bad  health,  nor  of 
inquiries  having  been  made  about  him  among  his  friends,  nor 
of  his  having  ever  left  the  place  of  his  former  residence;  Mat- 
ter of  Hall,  Wall.  Jr.  85  ;  that  the  presumption  arising  from 
extreme  old  age,  up  to  one  hundred  years,  is  not  conclusive  as 
to  death.     Burney  v.  Ball,  24  Ga.  405. 

The  presumption  of  death  which  arises  at  the  expiration 
of  seven  years  can  not  operate  retrospectively ;  Clarke  v.  Can- 
field.  15  N.  J.  L.  (2  McCart.)  119;  and  see  a  New  Hampshire 
case  which  holds  that  there  is  no  presumption  of  death,  or 
marriage,  or  the  birth  of  children,  or  the  reverse.  The  party 
who  asserts  that  a  person  is  dead  w'thout  issue,  must  offer 
some  evidence  of  those  facts.  If  the  events  are  remote,  slight 
proof  may  satisfy  a  jury.  Emerson  v.  White,  29  N.  H.  (9  Fost.) 
482. 


PRESUMPTIVE    EVIDENCE.  69$ 

where  absent  themselves  from  the  realm  for  more  than 
seven  years,  shall  thereupon,  in  the  absence  of  prooi 
to  the  contrary,  to  be  deemed  naturally  dead.  (_/) 
But  where  a  party  has  been  absent  for  seven  years, 
without  having-  been  heard  of,  the  only  presumption 
arising  is  that  he  is  dead  ;  there  is  none  as  to  the 
the  time  of  his  death.1  And  if  it  be  sought  to  estab- 
lish the  precise  time  of  such  person's  death,  this  must 
be  done  affirmatively,  by  evidence  of  some  sort  be- 
yond the  mere  fact,  that  seven  years  have  elapsed 
since   such  person  was  last  heard  of.  {g)     Cases  in 

(/)  4    Burge's    Col.    Law,    io,    n  ;  and   F.    N.  B.   196  L.),    which    might 

Shelford's     Real     Property    Statutes,  possibly  have  been  adopted  by  analogy 

176,  177.  4th  Ed.     There  are  traces  to  to    the    pre-existing    presumption,  in- 

be  found,  in  the  books,  of  this  sort  of  stead  of  its  being  copied  from  them, 
presumption  before  the   statutes   (see  {g~)  Doe  d.  Knight  v.   Nepean,  5  15. 

Thorn  v.  Rolff,  Dyer,   185a,    pi.    65  ;  &  Ad.   86  ;  affirmed  on   error,  2  M.  & 

1  The  probable  time  of  death  maybe  inferred  from  circum- 
stances, but  if  no  sufficient  facts  are  shown  from  which  to 
draw  a  reasonable  inference  that  death  occurred  before  the 
lapse  of  seven  years,  the  person  will  be  accounted  in  all  legal 
proceedings,  as  having  lived  during  that  period  ;  Eagle  v.  Em- 
met, 4  Bradf.  (N.  Y.)  117;  Garden  v.  Garden,  2  Houst.  (Del.) 
574;  White  v.  White,  26  Me.  361;  Merritt  v.  Thompson,  1 
Hilt.  (N.  Y.)55o;  Gibbes  v.  Vincent,  11  Rich.  (S.  C.)  323; 
Puckett  v.  State,  1  Sneed.  (Tenn.)  355  ;  see  to  the  contrary 
however,  State  v.  Moore,  11  Ired.  (N.  C.) ;  Spencer  v.  Roper 
Id.  ^2>Zi  which  holds  that  his  death  is  presumed  to  have  taken 
place  during,  and  not  necessarily  at  the  expiration  of  that  time. 
Tt  was  held  in  New  York  that  where  a  person  has  not  been 
heard  from  in  seven  years,  and,  when  last  heard  from,  he 
was  beyond  sea,  without  having  any  known  residence  abroad, 
the  legal  presumption  is  that  he  is  dead  ;  but  there  is  no  pre- 
sumption that  he  died  at  any  particular  time,  or  even  on  the 
last  day  of  the  seven  years.  McCartee  v.  Canal,  1  Barb.  (N. 
Y.)  Ch.  455. 

In  New  Jersey  it  has  been  held  that  the  statute  (Nixon 
Dig.  211,  §  4)  which  raises  a  presumption  of  the  death  of  a 
person  absenting  himself  for  seven  years  without  being  heard 
from,  was  desinged  to  furnish  a  legal  presumption  of  the  time 
of  the  death,  as  well  as  of  the  fact  of  the  death.  Clarke  v 
Canfield,  15  N.  J.  L.  (2  McCart.)  119. 


696     SECONDARY    RULES    OF    EVIDENCE. 

which  this  presumption  has  come  in  conflict  with  the 
presumption  of  innocence  have  been  already  consid- 
ered ;  (/^)  and  a  jury  may  find  the  fact  of  death,  from 
the  lapse  of  a  shorter  period  than  seven  years,  if  other 
circumstances  concur.  (2) 

410.  As  connected  with  the  subject  of  the  contin- 
uance of  human  life,  it  remains  to  notice  one  which 
has  embarrassed  more  or  less  the  jurists  and  lawyers 
of  every  country.  We  allude  to  those  unfortunate 
cases  which  have  from  time  to  time  presented  them- 
selves where  several  persons,  generally  of  the  same 
family,  have  perished  by  a  common  calamity  ;  such  as 
shipwreck,  earthquake,  conflagration,  or  battle  ;  and 
where  the  priority  in  point  of  time,  or  the  death  of 
one  over  the  rest,  exercises  an  influence  on  the  rights 
of  third  parties.  The  civil  law  and  its  commentators 
were  considerably  occupied  with  questions  of  this 
nature,  and  seem  to  have  established  as  a  general  prin- 
ciple (subject,  however,  to  exceptions),  that,  where 
the  parties  thus  perishing  together  were  parent  and 
child,  the  latter,  if  under  the  age  of  puberty,  was  pre- 
sumed to  have  died  first ;  but  if  above  that  age,  the 
rule  was  reversed;  while  in  the  case  of  husband  and 
wife,  the  presumption  seems  to  have  been  in  favor  ol 
the  survivorship  of  the  husband.  (/-)  The  French 
lawyers  also,  both  ancient  and  modern,  have  taken 
much  pains  on  this  subject.  (/)  All  the  theories 
that  have  been  formed  respecting  it,  are  based  on  the 
assumption   that  the  party  deemed  to  have  survived 

W.  S94.  And  see  In  re  Lewes'  Trusts,  Dig.  lib.  34,  tit.  5. 

L.  Rep.,  6  Ch.  Ap.  556 ;  Reg.  v.  Lum-  (/)  For  the  views  of  the  old  French 

ley,   L.   Rep.,  1  C.  C.  196;  Re  Phene,  lawyers,    see    Bulge's    Colonial    Law, 

L.  Rep.,  5  Ch.  App.  139.  vol.  4,   chap    1,  sect.    1  ;  and   for   the 

(h)  Supra,  sect.  1  tub-sect.  3,  §  334.  law    of    France    at    the    present    day, 

(i)  1  Greenl.  Ev.  ^  41,  7th  Ed.  ivil,   liv.   3.  tit.  1,  chap.  1,  Dei 

(k)  I    Greenl.    Ev.    §    29,   7th    Ld.  ;  Successions.  &£  720,  721,  722. 


PRESUMPTIVE    EVIDENCE.  697 

was  likely,  from  superior  strength,  to  have  struggled 
longer  against  death  than  his  companion.  Now  even 
assuming  that,  prima  facie,  a  male  would  struggle 
longer  against  death  than  a  female,  a  person  of  mature 
age  than  one  under  that  of  puberty,  or  very  far  ad- 
vanced in  years,  the  position  is  at  best  no  more  than 
a  general  rule ;  for,  not  only  in  particular  instances 
would  the  superior  strength  or  health  of  the  party 
supposed  to  be  the  weaker  reverse  all ;  but  the  rules 
rest  on  the  hypothesis,  that  both  parties  were  in  ex- 
actly the  same  situation  with  reference  to  the  impend- 
ing danger  ;  whereas,  it  is  obvious  that  their  respective 
situations  with  reference  to  it,  must  usually  be  unascer- 
tainable  in  the  fury  of  a  battle,  or  amidst  the  horrors 
of  an  earthquake  or  a  shipwreck.  And  the  moral 
condition  of  the  parties  must  not  be  overlooked  ;  the 
brave  survive  the  fearful  and  the  nervous.  Add  to 
this,  that  according  to  some  modern  physiologists,  in 
some  kinds  of  death  the  strongest  perish  first,  (w) 
However  that  may  be,  in  opening  the  door  to  this 
class  of  questions,  the  lawyers  of  Rome  and  France 
lost  sight  of  the  salutary  maxim  "  Nimia  subtilitas  in 
jure  reprobatur."  (11)  The  English  law  has  judged 
more  wisely  ;  for,  notwithstanding  some  questionable 
dicta,  the  true  conclusion  from  the  authorities  seems 

(m)  See   Beck's   Med.   Juris,  p.  397,  be    deemed  the  first   victims,   in  case 

7th   Ed.,  where  is  related  an  incident  the  causes  of  death  are   of  a  descrip- 

furnished   by  a  modern    traveler,  who,  tion  to  affect  these."     We  subjoin   the 

in    giving    an    account    of  a    caravan  following  statement,  though  not  from 

being   in   want  of  water  in  a  Nubian  a  work  of  authority    "  It    seems  that 

desert,  says  that  "  the  youngest  slave  death  from   hunger  occurs  soonest  in 

bore   the   thirst   better  than  the  rest  ;  the  young  and  robust,  their  vital  or- 

and    while     the     grown-up    boys    all  gans  being  accustomed  to  greater  ac- 

died,     the    children    reached     Egypt  tion   than   those    of   persons    past   the 

in   safety."     The    same    author   adds,  adult  age."     Chambers'    Pocket   Mis- 

"  as  to  habit  and  variety  of  constitu-  cellany,  Vol.  8,  p.  ng. 

tion,  all  such  that  have  a  tendency  to  (//•)  4  Co    5b  ;  5  Co.   12 la  ;  3   Bulst 

affections  of  the  head  and  lungs,  should  65. 


698      SECONDARY    RULES    OF    EVIDENCE. 

to  be,  that  it  recognizes  no  artificial  presumption  in 
cases  of  this  nature  ;  but  leaves  the  real  or  supposed 
superior  strength  of  one  of  the  persons  perishing  by 
a  common  calamity,  to  its  natural  weight,  i.e.  as  a  cir- 
cumstance proper  to  be  taken  into  consideration  by  a 
iudicial  tribunal,  but  which  standing  alone  is  insuffi- 
cient to  shift  the  burden  of  proof,  (o)  When,  there- 
fore, a  party  on  whom  the  onus  lies,  of  proving  the 
survivorship  of  one  individual  over  another,  has  no 
evidence  beyond  the  assumption  that,  from  age  or  sex 
that  individual  must  be  taken  to  have  struggled 
longer  against  death  than  his  companion,  he  can  not 
succeed.  But  then,  on  the  other  hand,  it  is  not  cor- 
rect to  infer  from  this,  that  the  law  presumes  both  to 
have  perished  at  the  same  moment — this  would  be 
establishing  an  artificial  presumption  against  manifest 
probability.  The  practical  consequence  is,  however, 
nearly  the  same ;  because  if  it  can  not  be  shown 
which  died  first,  the  fact  will  be  treated  by  the  tribunal 
as  a  thing  unascertainable,  so  that  for  all  that  appears 
to  the  contrary  both  individuals  may  have  died  at  the 
same  moment.  The  law,  as  stated  above,  has  been 
fullv  established  in   the  case  of  Underwood  v.  Wing 

(<?)  One  of  the  best  known  cases  on  cumstances.     The  cases  of  late  years 

this  subject  is  that  of  General  Stanwix  have  become  comparatively  numerous, 

and  his  daughter,  R.  v.  Dr.  I  lay,  i  W.  See  Taylor  v.  Diplock,  2  Phillim.  261 ; 

Bl.  640.     The  celebrated   Mr.  Fearne  Wright   v.  Netherwood  (or  Samuda), 

composed   two   ingenious    arguments,  2    Phillim.    266,    note    (c)  ;    Mason  v. 

one  in  favor  of  each  of  the  claimants.  Mason,  1  Meriv.  308  ;  Colvin  v.  H.M. 

See  his  Works.     There  is,  however,  a  Procurator-General,  1  Hagg.  N.  S.  92; 

prior  case  of  Hitchcock  v.  Beardsley,  In   the  goods  of  Selwyn,  3   Id.  748; 

West.    Rep.   t.    Hardw.   445  ;  and   an  In   the   goods    of   Murray,  1    Curteis, 

old  case  of  Broughton  v.  Randall,  Cro.  596;    Satterthwaite    v.    Powell,    Id. 

El.  503,  where  a  father  and  son  were  705  ;  Sillick  v.  Booth,  1  Y.  &  C.  C.  C. 

hanged  together  in  one  cart,  and  the  117  ;  Durrant  v.  Friend,  5  De  Gex  & 

son   was   presumed    to   have  survived  S.    343  ;   Underwood   v.    Wing,   4  De 

in  consequence  of    nis  appearing  to  G.,  M.  &  G.  633  ;  1  Jurist,  N.  S.  169, 

struggle  longer,   and   some   other  cir-  &c. 


PRESUMPTIVE    EVIDENCE.  69? 

(p) — the  judgment  in  which  was  affirmed  by  Lord 
Chancellor  Cranworth,  assisted  by  Wightman,  J.,  and 
and  Martin,  B. ;  (q)  and  finally  by  the  House  of  Lords 
in  the  case  of  Wing  v.  Angrave.  (r)  ' 

(/)  Per  Romilly,  M.  R. ;  19  Beav.  {q)  4  De  G.,  M.  &  G.  633  ;  1  Jurist, 

459.  N.  S.  169. 

(r)  8  H.  L.  C.  183. 

1  See  remarks  as  to  this  presumption  of  the  civil  law,  ante,  p. 
529,  note  1.  In  case  of  the  death  of  several  persons  by  a  com- 
mon' calamity,  presumptions  arising  from  age,  sex,  strength, 
&c,  rail  never  be  resorted  to  as  to  which  of  them  survived, 
when  there  is  any  evidence,  however  slight,  as  to  the  facts. 
Pell  v.  Ball,  1  Cheves  (S.  C.)  Part  2,  99. 

In  a  question  of  survivorship,  arising  out  of  a  common 
calamity,  the  legal  presumption  founded  upon  the  circum- 
stances of  age,  sex,  or  physical  strength,  does  not  obtain  in 
our  jurisprudence,  either  as  a  doctrine  of  the  common  law,  or 
as  an  enactment  of  the  legislative  authority.  It  is  a  doctrine 
of  the  civil  law.     Smith  v.  Croom,  7  Fla.  81. 

But  when  the  calamity,  though  common  to  all,  consists  of 
a  series  of  successive  events,  separated  from  each  other  in  point 
of  time  and  character,  and  each  likely  to  produce  death  upon 
the  several  victims,  according  to  the  degree  of  exposure  to  it, 
the  difference  of  age,  sex,  and  physical  strength  becomes  a 
matter  of  evidence,  and  may  be  considered.     lb. 

Where  a  husband,  wife,  and  daughter  perished  at  sea  by 
the  same  disaster,  and  there  was  no  evidence  as  to  who  was 
the  survivor — Held,  that  there  was  no  presumption  of  law  that 
the  daughter  survived  the  mother  ;  but,  it  seems,  that  it  will  be 
presumed  that  the  husband  survived  his  wife.  Mockring  v. 
Mitchell,  1  Barb.  (N.  Y.)  Ch.  264. 


;oo      SECONDARY    RULES    OF    EVIDENCE. 


SUB-SECTION  VIII. 

PRESUMPTIONS     IN    DISFAVOR   OF    A    SP0IL1AT0R. 

fARAGRAPB 

Maxim  "Omnia  proesumuntur  contra  spoliatorem  "               -  .411 

Instances  of  its  application        ........  41 1 

Eloigning,  &c    instruments  of  evidence,  or  introducing  the  crimen 

falsi    nto  legal  proceedings     .....  .         41a 

Extent  of    the  presumption  against  the    spoilator    of   docu- 
ments .........                    .  413 

Occasionally  carried  too  far  .  *  ...         414 

E>pecially  in  criminal  cases    ....,,.  415 

411.  Another  very  important  and  rather  favorite 
maxim  is,  "  Omnia  prsesumuntur  contra  spoliatorem," 
(s)  or  "  Omnia  prsesumunturin  odium  spoliatoris,"  (J) 
— a  maxim  resting  partly  on  natural  equity,  but  much 
strengthened  by  the  artificial  policy  of  law.  One  of 
the  leading  cases  on  this  subject  is  that  of  Armory 
v.  Delamirie,  («)  where  a  person  in  a  humble 
station  of  life,  having  found  a  jewel,  took  it  to  the 
shop  of  a  goldsmith  to  inquire  its  value,  who,  having 
got  the  jewel  into  his  possession  under  pretense  of 
weighing  it,  took  out  the  stones,  and  on  the  finder 
refusing  to  accept  a  small  sum  for  it,  returned  to  him 
the  empty  socket.  An  action  of  trover  having  been 
brought,  to  recover  damages  for  the  detention  of  the 
stone,  the  jury  were  directed  that,  unless  the  defend- 
ant produced  the  jewel,  and  thereby  showed  it  not  to 
be  of  the  finest  water,  they  should  presume  the 
strongest  against  him,  and  make  the  value  of  the  best 
jewels  that  would  fit  the  socket,  the  measure  of  their 

(s)  2    Ev.    Poh.  336  ;   1    Stark.   Ev.  (u)   1  Stra.  505.     And  see  Mortirne.. 

564,  3rd  Ed.  ;   10  II.  L.  Ca.  591.  v.  Craddock,  7  Jur.  45 

(/)  LotTt,  M.  3S9. 


PRESUMPTIVE    EVIDENCE.  701 

damages.  In  the  great  case  of  Annesley  v.  The  Ear] 
of  Anglesea,  (v)  the  circumstances  which  pressed 
most  against  the  defendant  were,  that  he  had  caused 
the  plaintiff,  who  claimed  the  title  and  family  estate  as 
heir,  to  be  kidnapped  and  sent  to  sea,  and  afterwards 
endeavored  to  take  away  his  life  on  a  false  charge  of 
murder — facts  which  one  of  the  judges  said,  spoke 
more  strongly  in  proof  of  the  plaintiffs  case  than  a 
thousand  witnesses.  So,  as  has  been  well  said,  if  it  be 
shown  that  a  plaintiff  has  been  suborning  false  testi- 
mony, and  has  endeavored  to  have  recourse  to  perjury, 
it  is  strong  evidence  that  he  knew  perfectly  well  that 
his  cause  was  an  unrighteous  one.  (x)  And  in  cases 
of  highway  robbery  the  law,  in  odium  spoliatoris,  will 
presume  fear  whenever  property  is  taken  with  such 
circumstances  of  violence  or  terror,  or  threatening  by 
word  or  gesture,  as  would  in  common  experience  in- 
duce a  man  to  part  with  his  property  from  an  ap- 
prehension of  personal  danger;  (y)  so  that,  even 
where  the  prosecutor  sought  out  the  robber,  and  sub- 
mitted to  be  robbed  by  him  for  the  purpose  of  bring- 
ing him  to  justice,  this  was  held  to  be  robbery  on  the 
part  of  the  accused,  (z)  In  the  Roman  law,  although 
the  general  rule  was  that  money  paid  was  presumed  to 
be  in  discharge  of  a  debt,  yet  where  a  man  who  was 
sued  for  a  debt,  denied  having  received  the  money, 
proof  that  he  had  in  point  of  fact  received  it,  turned 
on  him  the  burden  of  showing  that  it  was  in  payment 
of  a  debt,  (a)  The  application  of  the  maxim  to  in- 
ternational law  will  be  considered  in  another  place,  (b) 

(v)  17  Ho.  St.  Tr.   1140,   1430,  per         (y)  2  East,  P.  C.  711. 
Mounteney,  B.  (s)  Norden's  case,  cited  Foster,  C 

(x)  Per   Cockburn,    L.   C.   J.,   Mo-  L.  129. 
riarty  v.  London,  Chatham  and  Dover  (a)  Dig.  lib.  22,  tit.  3,  I.  25 

Railway   Co.,   L.    Rep.,   5   Q.  B.  314,  (6)  Infra,  sub-sect.  9. 

319. 


702      SECONDARY    RULES    OF    EVIDENCE. 

412.  Bu  the' most  usual  application  of  this  prin- 
ciple is  where  there  has  been  any  forensic  malpractice 
— by  eloigning,  suppressing  defacing,  destroying,  or 
fabricating  documents,  or  other  instruments  of  evi- 
dence, or  introducing  into  legal  proceedings  any  species 
of  the  crimen  falsi.  This  not  only  raises  a  presump- 
tion that  the  documents  or  evidence  eloigned,  sup- 
pressed, &c.,  would,  if  produced,  militate  against  the 
party  eloigning,  suppressing,  &c,  but  procures  more 
ready  admission  to  the  evidence  of  the  opposite 
side,  (c)  "  If,"  says  L.  C.  J.  Holt,  "  a  man  destroys  a 
thing  that  is  designed  to  be  evidence  against  himself, 
a  small  matter  will  supply."  (d)  This  rule  is  evidently 
based  on  the  principle  that  no  one  shall  be  allowed  to 
take  advantage  of  his  own  wrong ;  and  several  in- 
stances of  its  application  are  to  be  found  in  the  books. 
Thus,  in  the  case  of  R.  v.  The  Countess  of  Arundel, 
(e)  where  the  crown  was  entitled  at  law  to  certain 
land,  by  reason  of  an  attainder  for  high  treason,  a  suit 
in  equity,  to  recover  the  lands,  was  commenced  by  the 
attorney-general  against  the  defendant ;  and  on  its 
being  shown  that  the  deeds  whereby  the  estate  came 
to  the  party  attainted  were  not  extant,  but  were  very 
strongly  suspected  to  have  been  suppressed  and  with- 
held by  some  one  under  whom  the  defendant  claimed, 
a  decree  was   made  that  the  crown  should  hold  and 


(c)  Ph.  &  Am.   Ev.  458.     See   Roe  deeds  had  been  proved  tc  have  been 
d.  llaldane  v.  Harvey,  4  Burr.  24S4.  extant  and  duly  executed.     For  other 

(d)  Anon.,  1  L.  Raym.  731.  instances  of  the  manner  in  which  the 
(<»)   Hob.    109.     According    to   that  spoliation  of  documents  is  dealt  with 

report,    there    was    only    a    vehement  by  courts  of  equity,  see  the  cases  there 

suspicion    that    the    deeds    had    been  cited,  and  also  Dalston  v.  Coatsworth, 

suppressed  ;  but,  in   the  case  of  Cow-  1  P.  W.  731  ;  White  v.  Lady  Lincoln,  8 

per  v.  Earl  Cowper,   2  P.  Wms.  749,  Ves.  363  ;  Blanchet  v.   Foster,  2  Ves. 

Sir  Jos.  Jekyll,  M.  R., says  that  he  had  sen.  264  ;  and   The  Att.-Gen.   v   The 

caused  the  register  book   to   be  exam-  Dean  of  Windsor,  24  Beav.  679, 
ined,  from  which  it  appeared  that  the 


PRESUMPTIVE    EVIDENCE.  703 

enjoy  the  land  till  the  defendant  should  produce  the 
deeds,  and  the  court  thereupon  take  further  considera- 
tion and  order.  So  it  would  seem,  that  if  the  question 
were  whether  a  former  will  had  been  revoked  by  a  will 
made  subsequently,  the  contents  of  which  were  said 
to  differ  from  those  of  the  former  will, — although,  the 
later  will  not  being  produced,  it  did  not  appear  where- 
in the  difference  consisted, — evidence  of  spoliation  on 
the  part  of  the  claimant  under  the  former  will,  would 
lay  a  fair  foundation  for  the  presumption,  that  it  had 
been  revoked  by  the  later  will.  (/")  So  if  a  man  re- 
fuses, after  notice,  to  produce  an  agreement,  it  will  be 
presumed  to  have  been  properly  stamped  ;  (V)  and  it 
has  been  held  at  Nisi  Prius,  that  where  one  of  the  par- 
ties to  a  suit  has  fraudulently  obtained  a  document 
from  a  witness,  whose  property  it  is,  and  who  is  called 
on  to  produce  it  under  subpoena  duces  tecum,  second- 
ary evidence  of  the  contents  of  the  document  may  be 
given  without  notice  to  produce  the  original.  {Jif 

413.  It  is  said  that  the  presumption  against  the 
spoliator  of  documents,  is  not  confined  to  assuming 
those  documents  to  be  of  a  nature  hostile  to  him,  and 
procuring  a  more  favorable  reception  for  the  evidence 
of  his  opponent ;  but  that  it  has  the  further  effect,  of 
casting  suspicion  on  all  the  other  evidence  adduced  by 
the  party  guilty  of  the  malpractice,  (z)     "Qui  seme 

(/)  See  per  Lord   Mansfield,  Har-      35. 
wood  v.  Goodright,  Cowp.  87,  91.  (A)  Leeds  v.  Cook,  4  Esp.  256. 

(<f)  Crisp    v.   Anderson,    1    Stark.  (i)  Fhill.  &  Am.  Ev.  458. 

5  The  holder  of  a  note,  who  intentionally  burns  it,  can  not 
maintain  an  action  thereon.  And  a  party  who  wrongfully 
takes  or  converts  a  note  to  his  own  use,  is  answerable  for  the 
face  of  it;  Decker  v.  Matthew,  2  Kernan,  313.  And  if  a 
drawee  tortiously  destroy  a  draft  presented  for  acceptance,  he 
is  liable  thereon  or  therefor  to  the  same  extent  as  if  he  had  ac- 
cepted it      Edwards  on  Bills  and  NolCS.  418. 


704     SECOXDARY    RULES     OF    EV1DEXCE. 

malus,  semper  prsesumitur  esse  mains  eodem  genere." 
(£)  In  the  case  of  Doe  d.  Beanland  v.  Hirst,  (/) 
Bayley,  J.,  is  reported  to  have  told  the  jury,  that  they 
were  to  consider  the  circumstance  of  the  erasure  in  a 
certain  deed ;  observing  that  a  man  who  was  capable 
of  making  an  alteration  in  one  deed,  might  be  capable 
of  suppressing  another,  if  within  his  power.  And  the 
presumption  arising  from  the  fabrication  or  corrup- 
tion of  instruments  of  evidence,  is  even  stronger  than 
that  arising  from  the  suppression  or  destruction  of 
them,  {iii) 

414.  However  salutary,  and  in  general  equitable, 
the  maxim,  "  Omnia  prsesumuntur  contra  spoliatorem," 
must  be  acknowledged  to  be,  it  has  been  made  the 
subject  of  very  fair  and  legitimate  doubt,  whether  it 
has  not  occasionally  been  carried  too  far.  "The  mere 
non-production  of  written  evidence,"  says  Sir  W.  D. 
Evans,  {11)  "  which  is  in  the  power  of  a  party,  gener- 
ally operates  as  a  strong  presumption  against  him.  I 
conceive  that  has  been  sometimes  carried  too  far,  by 
being  allowed  to  supersede  the  necessity  of  other  evi- 
dence, instead  of  being  regarded  as  merely  matter  of 
inference,  in  weighing  the  effect  of  evidence  in  its  own 
nature  applicable  to  the  subject  in  dispute."  So,  in 
the  case  of  Barker  v.  Ray  (0)  Lord  Eldon  said :  "  This 
court  has  a  peculiar  jurisdiction  in  cases  of  spoliation. 
.  .  .  .  The  jurisdiction  of  the  court  in  matters  of 
spoliation  has  gone  a  long  way  ;    indeed,  it  has  gone 

(k)  Cro.  Car.  317.     The  text  of  the  7,  Cap.  2,  §  2,  n.  20;  also  Stnivius, 

canon    law    went    further,  laying    it  Synt.  Jur.  Civ.  Exercit.  28,  §  18,  note 

down,  "  Semel  mains,  semper  prEesum-  (£),  by  Miiller,  and  infra,  sect.  3,  sub- 

itur  esse  malus."     Sext.  Decretal,  lib.  sect.  1. 

5,  tit.  12,  De  Reg.  Jur.  R.  8.     But  the  (/)  11  Price,  488. 

commentators  on   that  law  seem  dis-  (/«)  r  Stark.  Ev.  564,  3rd  Ed. 

posed  to  restrict  its  effect   to  miscon-  («)  2  Evans's  Poth.  337. 

duct    ejusdem    generis.      See    Gibert,  (0)  2  Russ.  72,  73. 
Corp.  Jur.  Can.  Proleg.  Pars  Post.  tit. 


PRESUMPTIVE    EVIDENCE.  705 

to  such  a  length  that,  if  I  did  not  think  myself  bound 
by  authority  and  practice,  I  should  have  great  diffi- 
culty in  following  them  so  far.  To  say  that,  if  you 
once  prove  spoliation,  you  will  take  it  for  granted  that 
the  contents  of  the  thing  spoliated  are  what  they  have 
been  alleged  to  be,  may  be,  in  a  great  many  instances, 
going  a  great  length." '  Even  when  the  positive  fabri- 
cation of  evidence  is  proved  against  a  party,  tribunals 
whose  object  is  the  ascertaining  of  truth,  will  consider 
the  nature  of  the  case,  and  the  temptation  which 
might  have  led  to  fabrication.  Is  there  anything  im- 
possible in  the  suggestion,  is  it  even  unlikely,  that  in 
many  cases  the  fabrication  of  evidence  has  been  re- 
sorted to  under  the  apprehension,  perhaps  the  certain 
knowledge,  that  similar  malpractice  will  be  exercised 
by  the  other  side  ?  (/)  Suppose  a  man  is  sued  on  a 
bond  which  he  knows  to  be  a  forgery,  but  feels  that 
it  is  altogether  out  of  his  power  to  prove  it  so. 
"  Forge  a  release,"  or  "  Bribe  a  witness  to  prove  pay- 
ment," (g)  are  suggestions  too  obvious  not  to  have 
been  occasionally  acted  on. 

(p)  3  Benth.  Jud.  Ev.  168.  "arose  from  Sir  John  Stewart  having 

{q)  Id.     "  One  of  the  greatest   and  fabricated  four  letters,  as  received  from 

most  difficult   points   in    the   Douglas  La    Marre,    the    surgeon  ;    a    conduct 

cause."    observes    Sir    W.    D.    Evans,  certainly   very   suspicious,   and    calcu- 

1  So  a  refusal  to  produce  books  and  papers  upon  notice 
given,  does  not  warrant  the  presumption  that  if  produced,  they 
Avould  show  the  facts  to  be  as  alleged  by  the  party  giving 
notice;  tiie  only  effect  of  such  refusal  is  that  parol  evidence 
of  their  contents  may  be  given  :  and  if  such  secondary  evi- 
dence be  imperfect,  vague,  and  uncertain,  as  to  dates,  sums, 
&c,  every  intendment  and  presumption  shall  be  against  the 
party  who  might  remove  all  doubt  by  producing  the  higher 
evidence.  Some  general  evidence  of  such  parts  of  their  con- 
tents as  are  applicable  to  the  case,  must  first  be  given  before 
any  foundation  is  laid  for  any  inference  or  intendment  on  ac- 
count of  their  non -production.  Life  &  Fire  Ins.  Co.  v.  Me- 
chanic Fire  Ins.  Co.,  7  Wend.  31. 

4<i 


706      SECONDARY    RULES    OF    EVIDENCE. 

415.  Whatever  weight  may  be  legitimately  at- 
tached to  this  presumption  in  civil  cases,  great  care 
must  be  taken  in  criminal  cases,  where  life  or  liberty 
are  at  stake,  not  to  give  to  spoliation,  or  similar  acts, 
any  weight  to  which  they  are  not  entitled.  Nations 
and  ages  differ  in  the  tone  of  moral  feeling  diffused 
through  society,  and  in  their  reverence  for  the  sacred- 
ness  of  an  oath  ;  men  differ  in  strength  of  conscien- 
tious principle,  as  well  as  in  courage ;  and  tribunals 
differ  in  ability  and  impartiality,  and  in  the  quantity 
of  evidence  which  they  exact  for  condemnation.  Un- 
doubtedly, the  suppression  or  fabrication  of  evidence 
by  a  party  accused  of  a  crime,  is  always  a  circum- 
stance, frequently  a  most  powerful  one,  to  prove  his 
guilt.  But  many  instances  have  occurred  of  innocent 
persons — alarmed  rt  a  body  of  evidence  against  them 
which,  although  false  or  inconclusive,  they  felt  them- 
selves unable  to  refute — having  recourse  to  the  sup- 
pression or  destruction  of  criminative,  and  even  to  the 
fabrication  of  exculpatory  testimony,  (r)  Sir  Edward 
Coke  relates  a  now  well-known,  but  not  on  that  ac- 
count less  remarkable  or  striking  instance  of  this,  (s) 
An  uncle  had  the  bringing  up  of  his  niece,  who  was 
entitled  to  some  landed  property  under  her  father's 
will,  of  which  she  would  become  possessed  at  the  age 
of  sixteen,  and    to  which    the  uncle  was  next  heir. 

lated  to  induce   a  strong  presumption  occasionally    endeavored     to     defend 

against  the  general  veracity  of  his  ac-  themselves  by  setting  up  false  alibis  ; 

count.     1  11:  :ve  the  tine  conclusion,  and     cases    have     probably    occurred 

from    all    the    circumstances    in    that  where   the  accused,   though   innocent, 

cause,  to  be  that  which  was  drawn  l>y  could  not  avail  himself  of  his  real  de- 

the  House  of  Lords  in  support  of  the  fense,     without      criminating     otheis 

filiation;  but  it  is  impossible  for  great  whom   he  is  anxious  not  to  injure,  or 

doubt  not  to  hang  upon  a  case  affected  even  eliminating  himself  with  respect 

by  such  a  circumstance."     2  Ev.  Poth.  to  other  transactions. 

337,  note  (a).  (.<■)  3  In-t.  ch.  140,  p.  232  ;  cited  also 

(r)  1  Stark.  Ev.  565,  3rd  Ed  ;   Ph.  &  2    Hale.  P.  C.  290  ;    2   Ev.  Poth.  338  , 

Am.  Ev.  467.     Innocent  persons  have  Wills,  Circ.  Evid.  82,  3rd  Ed. 


PRESUMPTIVE    EVIDENCE.  707  , 

When  she  was  about  eight  or  nine  years  old,  he  was 
one  day  correcting  her  for  some  offense,  when  she  was 
heard  to  say,  "  Oh,  good  uncle,  kill  me  not !"  After 
this  time  the  child  could  not  be  heard  of,  though 
much  inquiry  was  make  after  her  ;  and  the  uncle  be- 
ing committed  to  jail  on  suspicion  of  her  murder,  was 
admonished  by  the  justices  of  assize  to  find  out  the 
child  against  the  next  assizes.  Unable  to  do  this,  he 
dressed  up  another  child  to  represent  her;  but,  the 
falsehood  being  detected,  he  was  convicted  and  exe- 
cuted for  the  supposed  murder.  It  afterwards  ap- 
peared, however,  that  on  being  being  beaten  by  her 
uncle,  the  neice  had  run  away  into  an  adjoining  county, 
where  she  remained  until  the  age  of  sixteen,  when  she 
returned  to  claim  her  property.  "  Which  case,"  he 
adds,  "  we  have  reported  for  a  double  caveat :  first  to 
judges,  that  they  in  case  of  life  judge  not  too  hastily 
upon  bare  presumption  ;  and,  secondly,  to  the  innocent 
and  true  man,  that  he  never  seek  to  excuse  himself  by 
false  or  undue  means,  lest  thereby  he  offending  God 
(the  Author  of  truth)  overthrow  himself,  as  the  uncle 
did"  A  case  is  also  related  where,  in  a  large  com- 
pany, a  valuable  trinket  belonging  to  one  of  the  party 
was  suddenly  missed.  On  the  proposal  of  one  of  the 
company,  all  agreed  to  be  searched,  except  one,  who, 
by  an  obstinate  refusal,  drew  down  on  himself  strong 
suspicion.  He,  however,  succeeded  in  obtaining  a  pri- 
vate audience  of  the  master  of  the  house ;  and  on  his 
pockets  being  turned  inside  out,  there  was  discovered, 
instead  of  the  trinket  sought,  a  portion  of  eatables, 
which  he  had  taken  to  carry  home  to  his  wife,  who 
had  no  means  of  procuring  food.  (7) 

(/)  3  Benth.  Jud.  Ev.  8S-9. 


7o8      SECONDARY    RULES     OF    EVIDENCE. 


SUB-SECTION  IX. 


PRESUMPTIONS    IN    INTERNATIONAL    LAW. 

PARAGRAPH 

Presumptions  in  international  law  . 416 

Public 417 

Acts    done    by   an    independent    sovereign    who    is    also  the 

subject  of  another  state     .         .         .         .         .         .         .  418 

Presumptions  in  disfavor  of  a  spoliator  ....  419 

Private 420 

Presumptions  relating  to  domicil 421 

Other   presumptions      ........  422 

416.  We  propose  now  to  consider  certain  presump- 
tions to  be  found  in  international  law. 

417.  The  public  international  law,  as  is  well 
known,  is  adopted  by  the  common  law,  and  is  held  to 
be  part  of  the  law  of  the  land.  («)  "  In  republica 
maxime  conservanda  sunt  jura  belli."  (x) 

418.  Where  the  subject  of  one  state  is  also  the 
independent  sovereign  of  another,  he  is,  of  course,  not 
responsible  to  the  laws  of  the  former  state  for  acts 
done  by  him  as  such  sovereign,  (jj/)  And  it  seems 
that,  in  respect  to  any  act  done  by  such  a  person  out 
of  the  realm  of  which  he  is  a  subject,  or  any  act  as  to 
which  it  might  be  doubtful  whether  it  ought  to 
be  attributed  to  the  character  of  the  sovereign  prince 
or  to  that  of  the  subject,  the  act  ought  to  be  presumed 
to  have  been  done  in  the  character  of  the  sovereign 
prince,  (z) 

(«)  4  Blackst.  C.  67.  B.  171  ;  De   Haber  v.  The  Queen  of 

(x)  2  Inst.  58.  of  Portugal,  Id.  196. 

(y)  The  Duke  of  Brunswick  v.  The  (2)  The  Duke  of  Brunswick  v.  The 

King  of  Hanover,  6    Eeav.    1  ;  Wads-  King  of  Hanover,  6  Beav.  57,  58. 
worth  v.  The  Queen  of  Spain.    17  Q. 


PRESUMPTIVE    EVIDENCE.  709 

419.  The  principle  of  presuming  in  disfavor  of  a 
spoliator  (a)  is  recognized  in  international  law,  (ft) 
especially  in  those  cases  where  papers  have  been 
spoliated  by  a  captured  party,  (V)  and  where  neutral 
vessels  are  found  carrying  despatches  from  one  part 
of  the  dominions  of  a  belligerent  power  to  an- 
other, (d) 

420.  With  lespect  to  private  international  law, 
its  very  existence  rests  on  one  important  presumption. 
"  In  the  silence  of  any  positive  rule,"  says  Dr.  Story, 
"  affirming,  or  denying,  or  restraining  the  operation  of 
foreign  laws,  courts  of  justice  presume  the  tacit  adop- 
tion of  them  by  their  own  government,  unless  they 
are  repugnant  to  its  policy,  or  prejudicial  to  its  inter- 
ests." (e)  l  So,  says  Professor  Greenleaf,  "  A  spirit  of 
comity,  and  a  disposition  to  friendly  intercourse  are 

(a)  See  this  subject  generally,  supra,      703. 

sub-sect.  8.  (d)  The  Atalanta,   6   Robins.  Adm. 

(b)  1  Greenl.  Ev.  §  31,  7th  Ed.  R.  440. 

(c)  The  Hunter,  1  Dods.  Adm.  Rep.  (e)  Story,  Confl.  of  Laws,  §  38,  5th 
480  ;    The  Johanna  Emilie,   18    Jur.  Ed. 

1  "  It  is  needless  to  enumerate  here  the  instances  in  which, 
by  the  general  practice  of  civilized  countries,  the  law  of  the 
one  will,  by  the  comity  of  nations,  be  recognized  and  ex- 
ecuted in  another,  where  the  rights  of  individuals  are  con- 
cerned. The  cases  of  contracts  made  in  a  foreign  country  are 
familiar  examples,  and  courts  of  justice  have  always  ex- 
pounded and  executed  them  according  to  the  laws  of  the 
place  in  which  they  were  made,  provided  that  law  was  not 
repugnant  to  the  laws  or  policy  of  their  own  country.  The 
comity  thus  extended  to  other  nations  is  no  impeachment  of 
sovereignty.  It  is  the  voluntary  act  of  the  nation  by  which  it 
is  offered,  and  is  inadmissible  when  contrary  to  its  policy,  or 
prejudicial  to  its  interests.  But  it  contributes  so  largely  to 
promote  friendly  interests  between  the  sovereignties  to  which 
they  belong,  that  courts  of  justice  have  continually  acted  upon 
it  as  a  part  of  the  voluntary  law  of  nations;  "  per  Taney,  C.  J., 
in  Bank  of  Augusta  v.  Earie,  13  Pet.  519,  589. 


710     SECONDARY    RULES     OF    EVIDENCE. 

presumed  to  exist  among  nations  as  well  as  among 
individuals."  (_/) 

421.  There  are  other  presumptions  to  be  found  in 
this  branch  of  jurisprudence.  Thus,  the  place  of  a 
person's  birth  is  considered  as  his  domicil,  if  it  is  at 
the  time  of  his  birth  the  domicil  of  his  parents,  (g) 
But  a  more  important  rule  is,  that  the  place  where  a 
person  lives  must  be  taken,  prima  facie,  to  be  his 
domicil,  until  other  facts  establish  the  contrary.  (k) 
Where  the  family  of  a  married  man  resides,  is  gener- 
ally to  be  deemed  his  domicil,  (Y)  2  and  that  of  an 
unmarried  man  will  be  taken  to  be  in  the  place  where 
he  transacts  his  business,  exercises  his  profession,  or 
assumes  and  exercises  municipal  duties  or  privileges 
(/)  3  And  it  is  said  to  be  a  principle,  that  where  the 
place  of  domicil  is  fixed  or  determined  by  positive 
facts,  presumptions  from  mere  circumstance  will  not 
prevail  against  those  facts.  (/&)  This  does  not  mean 
that  presumptive  evidence  is  inadmissible  to  prove 
domicil ;  and,  indeed,  it  amounts  to  little  more  than 

(/)  1  Greenl.  Ev.  §  43,  7th  Ed.  Bernes,  3  Hagg.  N.  R.  437. 

(,§■)  Story,  Confl.  of  Laws,  §  46,  5th  (i)  Story,  Confl.  of  Laws,  §  46,  5th 

Ed.  Ed. 

(//)  Id.  ;  Bruce  v.  Bruce,  2  B.   &    P.  (J)  Id.  §  47,  5th  Ed. 

229.  230,  note  (a) ;  Bempde  v.  John-  (k)  Story,  Confl.  of  Laws,  §  47,  5th 

stone,    3    Yes.   Jun.    19S ;    Stanley  v.  Ed. 

1  See  Hump  v.  Smith,  11  N.  H.  48. 

a  But  the  above  are  only  to  be  regarded  as  presumptions, 
when  the  domicil  is  voluntary;  if  the  residence  be  by  con- 
straint, as  by  banishment,  arrest,  or  imprisonment,  the  ante- 
cedent domicil  of  the  party  remains;  Story,  Conflict  of  Laws, 
§  47;  Woodstock  v.  tlartland,  21  Vt.  563.  It  can  not  be  said 
that  a  person  has  come  to  reside  in  a  place  where  he  is  im- 
prisoned by  force  0/  law  The  time  which  should  transpire 
under  such  imprisonment  can  not  be  counted  as  so  much  time 
of  residence  toward  gaining  a  settlement.  Danville  v.  Putney, 
6  Vt.  512. 


PRESUMPTIVE    EVIDENCE.  711 

saying,  that  the  weaker  evidence  shall  not  be  allowed 
to  prevail  against  the  stronger.1 

422.  It  is  also  a  principle  of  international  law  that 
generally  speaking,  the  validity  of  a  contract  is  to  be 
decided  by  the  law  of  the  place  where  it  is  made, 
unless  it  is  to  be  performed  in  another  country,  (/) 
for,  in  the  latter  case,  the  law  of  the  place  of  perfor- 
mance is  to  govern,  (;;/)  because  such  may  well  •  be 
presumed  to  have  been  the  intention  of  the  parties. 
(11)  So,  a  foreign  marriage  will  be  presumed  to 
have  been  celebrated,  with  the  solemnities  required  by 
the  law  of  the  place  where  it  is  celebrated.  (0) 
And  the  general  presumptions  against  crime,  fraud, 
covin,  immorality,  &c,  are  applicable  to  acts  done 
abroad. 

(/)  Per  Lord    Mansfield,   Robinson  («)  Id.  §  76. 

▼.  Bland,  I  W.  Bl.  256,  25S,  259.  (0)  R.  v.  The  Inhabitants  of  Bramp- 

(m)  Story,  Confl.  of  Laws,  §  242  (1),  ton,  10  East,  2S2,  2S9,  per  L.  Ellen- 

280-282.  borough. 

1  See  Dr.  Lieber's  Encyclopaedia  Americana,  Art.  Domicil. 
A  new  domicil  must  be  actually  acquired  before  an  old  one 
is  lost.  Story,  Conflict  of  Laws,  §  47  ;  Jennison  v.  Hap- 
good,  10  Pick.  77 ;  Moore  v.  Wilkins,  10  N.  H.  452  ;  and 
see  generally  as  to  domicil,  Blanchard  v.  Stearns,  5  Met. 
298  ;  Foster  v.  Hall,  4  Humph.  346  ;  Isham  v.  Gibbons,  1  Bradf. 
70 ;  Crawford  v.  Wilson,  4  Barb.  505  ;  Harvard  College  v. 
Gore,  5  Pick.  370;  Lyman  v.  Fiske,  7  Id.  231;  Re  Wrigley, 
4  Wend.  602;  Exeter  v.  Brighton,  15  Me.  58;  Jefferson  v. 
Washington,  19  Id.  293  ;  Phillips  v.  Kingfield,  Id.  375  ;  Hylton 
v.  Brown,  1  Wash.  C.  C.  299. 


;i2     SECONDARY    RULES    OF    EVIDENCE. 
SUB-SECTION   X 

PRESUMPTIONS     IN     MARITIME     LAW. 

PARAGRAPH 

Prestimj  :ions  in  maritime  law 4*3 

Seaworthiness 423 

Unseaworthiness  .  ........  423 

umption  of  loss  of  missing  ship 424 

Implied  stipulations  against  delay  and  deviation        .        .         .  424 

423.  Among  the  most  important  presumptions  in 
maritime  law  are  those  relating  to  seaworthiness. 

Every  ship  insured  on  a  voyage  policy,  sails  under 
an  implied  warranty  that  she  is  seaworthy.  It  is  not 
necessary  to  inquire  whether  the  assured  acted  honestly 
and  fairly  in  the  transaction ;  however  just  and 
honest  his  intentions  may  have  been,  if  he  was  mis- 
taken in  the  fact,  and  the  vessel  was  not  seaworthy, 
the  underwriter  is  not  liable.  (/)  But  if  a  ship, 
shortly  after  sailing,  turns  out  to  be  unfit  for  sea,  with- 
out apparent  or  adequate  cause,  the  burden  of  proof  is 
thrown  on  the  assured  ;  and  a  jury  ought  to  presume 
that  the  unseaworthiness  existed  before  the  commence- 
ment of  the  voyage,  (g)  And  this  rule  holds,  even 
though  the  ship  encountered  a  violent  storm,  unless  it 
can  fairly  be  inferred  that  the  damage  resulted  from 
the  storm,  (r)  The  implied  warranty  of  seawor- 
thiness, however,  does  not  at  least  in  general,  extend 
to  time  policies.  (s) 

(p)  Park  Ins.   332,   7th    Ed.  ;  Am.  Watson  v.  Clark,  I  Dow,  336  ;  Parker 

Ins.    689,    690,    2nd    Ed.    ;    Knill    v.  v.  Potts,  3  Dow,  23. 
Hooper,    2    II.  &  N.  277  ;  Douglas  v.  (j)  Gibson  v.  Small,  4  Ho.  Lo.  Cas. 

Scougall,  4  Dow,  269.  353  ;  Thompson  v.  Hopper,  6  E.  &  B. 

{q)  Munro    v.    Vandam,    Park,    Ins.  172,  937  ;  Faucus  v.  Sarsfield,  Id.  192  ; 

333,  note  (a),  7U1  Ed.  Biccard   v.    Shepherd,  14  Moore,  P.  C. 

(r)  Douglas  v.  Scougall,  4  Dow,  269  ;  C.  471,  493. 


PRESUMPTIVE    EVIDENCE.  713 

424.  Where  a  vessel  is  missing,  and  no  intelligence 
of  her  has  been  received  within  a  reasonable  time 
after  she  sailed,  it  shall  be  presumed  that  she  foun- 
dered at  sea.  (t )  Thus,  where  a  ship  was  insured  in 
1739,  from  North  Carolina  to  London,  with  a  warranty 
against  captures  and  seizures,  an  action  was  brought 
against  the  underwriters, — alleging  a  loss  by  sink 
ing  at  sea, — which  action  came  on  to  be  tried  in  M. 
T.,  17  Geo.  II.  The  only  evidence,  however,  was  that 
the  ship  had  sailed  on  her  intended  voyage,  and  had 
never  since  been  heard  of.  On  this  it  was  objected  on 
the  part  of  the  defendant,  that  as  captures  and  seizures 
were  excepted,  it  lay  on  the  assured  to  prove  a  loss  as 
alleged  in  the  declaration  ;  but  Lee,  C.  J.,  said  it  would 
be  unreasonable  to  expect  evidence  of  that ;  for  as 
everybody  on  board  was  presumed  to  be  drowned 
the  plaintiff  had  given  the  best  proof  the  nature  of  the 
case  admitted  of;  and  he  left  the  case  to  the  jury, 
who  found  for  the  plaintiff,  (zi)  There  is  no  precise 
time  for  this  presumption,  fixed  either  by  the  common 
or  general  maritime  law,  (V)  although  the  laws  of  some 
countries  have  peculiar  provisions  on  the  subject  ;  (V) 
but  the  court  and  jury  will  be  guided  by  the  circum- 
stances laid  before  them,  and  the  nature  of  the  voyage 
and  navigation.  In  order,  however,  to  raise  this  pre- 
sumption, it  must  be  distinctly  shown  that  the  ship 
left  port,  bound  on  her  intended  voyage,  (y) 

When  no  express  time  is  fixed  for  the  commence- 
ment of  a  voyage,  the  law  implies  a  stipulation,  that 
it  shall    be  commenced   without    unreasonable  delay 

(/)  Park    Ins.  105,  7th  Ed.  ;  Green  v.  (v)  Park.  Ins.  106,  7th  Ed.  ;   Houst 

Brown,    2    Str.    1199  ;    Houstman    v.      man  v.  Thornton,  Holt,  N.  P.  C.  243, 
Thornton,  Holt,  N.  P.  C.  243.  per  Gibbs,  C.  J. 

(«)  Green   v.    Brown,   2    Str.    1199,  (.r)  Park,  Ins.  107,  7th  Ed. 

1200.  (j)  Roster  v.   Innes,  R.  X-  M.  3331 

Cohtii  v.  Hinckley,  2  Camp.  51. 


7H      SECONDARY    RULES    OF    EVIDENCE. 

and  that  there  shall  be  no  unnecessary  deviation  from 
it  when  once  commenced,  (z)  And  where  there  is  a 
voyage  policy  "  at  and  from  "  a  port,  there  is  an  im- 
plied undertaking-  by  the  assured,  that  the  ship  shall 
be  at  that  port  within  such  time  that  the  risk  shall  not 
be  materially  varied,  (a) 


SUB-SECTION  XL 

MISCELLANEOUS    PRESUMPTIONS. 

PARAGRAPH 

Miscellaneous  presumptions 425 

Relating  to  real  estate 426-7 

Founded    on    the    relations   in    which    parties   stand    to    each 

other          .                                             428 

In  contracts        ...........  429 

Affecting  common  carriers  ........  430 

Affecting  innkeepers 430 

Maxim 430 

425.  We  now  propose  to  advert  to  some  presump- 
tions likely  to  be  met  with  in  practice,  which  have  not 
been  hitherto  noticed. 

426.  A  large  number  of  these  relate  to  real  estate 
and  are  for  the  most  part  quasi  prsesumptiones  juris, 
i.e.  presumptions  which  are  almost  as  obligatory  as 
presumptions  of  law,  but  which  can  not  be  made 
without  the  intervention  of  a  jury.  Thus  the  soil  of 
the  seashore,  between  high  and  low  water-mark,  is  pre- 
sumed to  belong  to  the  crown  ;  {b)  and  so  is  the  soil 
at  the  bottom  of  a  navigable  tidal  river.  (V)  So  the 
shore  of  the  sea  or  of  a  tidal   river,  between  ordinary 

(2)  M'Andrew  v.    Adames,  4   M.   &  (6)  Blundell  v.   Catterall,  5  B.  &  A. 

Scott,    517,   530,  and   the   authorities.  268,  304,  per  Bayley,  J.    See  the  Att.- 

there  referred   to,  and  Arn.   Ins.   393  Gen.   v.   Chambers,  4  De  G.,  M.  &  G 

et  seq.,  2nd  Ed.  206  ;  5  Jur.,  N.  S.  745. 

(a)  De  Wolf  v.  Archangel  Insurance  (c)  Malcolmson   v.   O'Dea,    10  Ho, 

Company,  L.  Rep.,  9  Q.  B.  451.  Lo.  Cas.  593,  618. 


PRESUMPTIVE    EVIDENCE.  715 

high  and  low  water-mark,  it  presumed  to  be  extra- 
parochial,  (d)     Whether  the  soil  of  lakes  prima  facie 
belongs  to  the  owners  of   the   lands  or  manors  on 
either  side,  ad  medium  filum  aquas,  or  to  the  crown, 
seems  a  disputed  point,  (e)     Where  the  river  is  not 
navigable,  the  bed  is  presumed  to  be  the  property  of 
the  owners  on  each  side,  ad  medium  filum  aquas,  (/") 
The  same  principle  holds  in  the  case  of  a  public  high- 
way,— the  soil  of  which  is  taken,  prima  facie,  to  belong 
to  the  owners  of  the  adjoining  lands,  usque  ad  me- 
dium filum  viae;  (g)  and  it  also  applies  to  the  case  of 
a  private  road.  (//)     But,  as  this  presumption  is  found- 
ed on  the  supposition  that  the  road  originally  passed 
over  the  lands  of  adjoining  owners,  it  seems  that   it 
does  not  apply  to  roads  set  out  under  inclosure  acts, 
(z*)  or  to  cases  where  the  original  dedication  of  the 
road    can     be     shown    by     positive     evidence.    (/£) 
And,  in  the  case  of  a  private  road,  it  may  be  rebutted 
by   proof  of  acts   of  ownership.  (/)     Again,  it  seems 
to  be  a  presumptio  juris  that  one  part  of  a    manor 
is  not  of  a  different  nature  from  the  rest,  (in)      So 
the  lord  of  a  manor  is,   prima  facie,  entitled  to  all 


(d)  Ipswich  Dock  Commissioners  v.  Green,  II  Price,  739  ;  Salisbury  (Mar- 
Overseers  of  St.  Peter's,  Ipswich,  7  quis  of)  v.  The  Great  Northern  Rail- 
B.  &  S.  310  ;  Bridgwater  Trustees  v.  way  Company,  5  Jur.,  N.  S.  70  ;  Ber- 
Booth,  Id.  34S  ;  L.  Rep.,  2  Q.  B.  4.  ridge  v.  Ward,  10  C.  B.,  N.  S.  400  ;  R. 

(e)  Marshall  v.  The  Ulleswater  v.  The  Strand  Board  of  Works,  4  B. 
Steam  Navigation  Company,  3  B.  &  S.  &  S.  526. 

732  ;  affirmed  in  error,  6  B.  &  S.  570.  (/i)  Holmes  v.   Bellingham,  7  C  B., 

(/)  Carter  v.  Murcot,  4  Burr.  2162  ;  N.  S.  329. 
R.  v.  The  Inhabitants  of  Landulph,  I  (i)  R.   v.    The   Inhabitants    of   Ed- 
Moo.  &  R.  393  ;  Lord  v.  The   Com-  monton,   1   M.  &  Rob   24,  32  ;  R.   v 
missioners  of  Sidney,  12  Moo.  P.  C  C  Wright,  3  B.  &  Ad.  6S1. 
473 ;  M'Cannon  v.  Sinclair,  2  E.  &  E.  (k)  Headlam  v.   Headley,  Holt,  N. 

53-  P.  C.  463- 

(.g)  Berry  and  Goodman's   Case,  2  (/)  See  Holmes  v.  Bellingham,  7  C 

Leon.   148  ;  Grose  v.  West,  7   Taunt.  B.,  N.  S.  329,  337. 

39  ;    Anon.,    Lofft,    358  ;    Cooke    v.  (/«)  Co.  Litt.  78b. 


716      SECONDARY    RULES    OF    EVIDENCE. 

the"  waste  lands  within  the  manor  ;  (ji)  but  the  pre- 
sumption may  be  rebutted  by  circumstances,  (o) 
Strips  of  land  adjoining- a  road  are  presumed  to  belong 
to  the  owner  of  the  adjoining  inclosed  land,  and  not 
to  the  lord  of  the  manor ;  (p)  although  this  presump- 
tion also  may  be  rebutted  ;  (g)  and  is  either  done 
away,  or  considerably  narrowed,  by  proof  that  thos 
strips  communicated  with  open  commons,  or  larger 
portions  of  land,  (r)  Where  an  inclosure  is  bounded 
by  a  bank  and  ditch,  the  land  which  constitutes  the 
ditch,  is  prima  facie  part  of  the  close,  although  it  be 
on  the  outside  of  the  bank,  (s)  And  in  the  case  of 
party-walls,  where  the  quantity  of  land  contributed  by 
each  owner  is  unknown,  the  common  use  of  the  wall 
is  prima  facie  evidence,  that  it  and  the  land  on  which 
it  is  built  are  the  undivided  property  of  both.  (7) 

427.  Where  the  terms  of  the  grant  of  the  several 
fishery  are  unknown,  the  owner  of  the  fishery  may  be 
presumed  to  be  the  owner  of  the  soil ;  (#)  but  where 
those  terms  appear,  and  are  such  as  to  convey  an  in- 
corporeal hereditament  only,  the  presumption  is  de- 
stroyed, (v)  And  ownership  of  the  soil  is  prima  facie 
evidence  of  a  right  of  fishery,  (zv)     Proof  of  a  carriage- 

(;/)  Doe   d.    Earl    of    Dunraven   v.  (/)  Wiltshire  v.  Sidford,  8  B.   &  C. 

Williams,  7  C.  &  P.  332.  259,  n.  ;  Cubitt  v.  Porter,  Id.  257. 

(o)  Simpson   v.    Dendy,  S  C.  B.,   N.  (it)  Duke  of  Somerset  v.  Fogwell,  5 

S.  433-  B.  &  C.  875,  S86,  per  BayleyJ.  ;  Hol- 

(/)  Doe  d.  Pring  v.  Pearsey,  7  B.  &  ford  v.  Bailey,  8  Q.  B.  1000,  1016,  per 

C.    304  ;  Steel    v.    Prickett,    2    Stark.  Lord  Denman,  Id.,  in  error,  13  Q.  B. 

463  ;  Scoones  v.  Morrell,  I  Beav.  251  ;  426,    444,    per    Parke,    B.      See  also 

Doe  d.  Barrett  v.  Kemp,  7  Bing.. 332.  Marshall   v.    The    Ulleswater    Steam 

(q)  Doe  d.  Harrison  v.  Hampson,  4  Navigation  Company,  3  B.  &  S.  732  ; 

C.  P.  267.  affirmed,  6  Id.  570  ;  and  Co.  Litt.  122b, 

(r)  Grose  v.  West,  7  Taunt.  39.  with  Hargrave's  note  (7). 

(s)  See,    per    Holroyd,   J.,    Doe    d.  (ij  Duke  of  Somerset  v.  Fogwell,  5 

Pring  v.    Pearsey,  7  1!.  &  C  304,  307  ;  B.  &  C.  S75. 

per  Lawrence,  J.,  Vowlej  v.    Miller,  3  (w)  See    Mayor,   &c.   of  Carlisle    v. 

Taunt.  137,  13S.  Graham,  L.    Rep.,  4  Ex.  361,  368  ;  3 

Stark.  Ev.  1253,  3rd  Ed. 


PRESUMPTIVE  EVIDENCE.  717 

way  is  presumptive  evidence  of  a  grant  of  a  driftway 
(x)  Where  rents  of  small  amount  have  been  paid 
to  the  lord  of  the  manor  for  a  long  series  of  years,  with- 
out any  variation,  the  payment  of  them  affords  no 
evidence  of  title  to  the  land — the  presumption  is,  that 
they  are  quit-rents,  (jj/)  So  an  allegation  of  seizin 
prima  facie  implies  occupation,  (z) 

428.  Several  presumptions  are  founded  on  the  re- 
lations in  which  parties  stand  to  each  other.  Thus,  a 
woman  who  commits  felony,  or  perhaps  misdemeanor, 
in  company  with  her  husband,  is  excused  on  the  pre- 
sumption (which,  however,  may  be  rebutted)  of  her 
having  acted  under  his  coercion,  (a)1  But  the  rule 
does  not  extend  to  crimes  which  are  mala  in  se,2  nor 
to  such  as  are  heinous  in  their  character,  or  dangerous 
in  their  consequences,  (by     Encroachments  made  by 

(x)  Ballard  v.  Dyson,  I  Taunt.  179.  England  v.  Wall,  10  M.  &  W.  699. 

(y)  Doe   d.    Whittick,  v.   Johnson.  (a)  See  the  authorities  collected  in 

Gow.  N.  P.  C.  173-174,  per   Holroyd,  Arch.   Crim.    Plead,  pp.    18,   19,  15th 

J.  Ed.  ;  Roscoe's  Cr.  Evid.  937-939,  5th 

(z)  Stott  v.  Stott,  16  East,  351.    See  Ed. 

Clayton  v.  Corby,  2   G.  &   Dav.  174  ;  (fi)  Id. 

1  Commonwealth  v.  Butler,  1  Allen  (Mass.)  4. 

s  That  is,  a  felony  less  than  murder.     Wharton's  American 
Criminal  Law,  §  71  ;  Davis  v.  State,  15  Ohio,  72. 

3  Commonwealth  v.  Neal,  10  Mass.  152;  Jones  v.  State,  5 
Blackford  141,  192;  Commonwealth  v.  Trimmer,  1  Mass.  476; 
Martin  v.  Commonwealth,  1  Id.  347.  "The  prima  facie  pre- 
sumption on  the  trial  is  that  the  wife  acted  under  the  coer 
cion  of  her  husband,  provided  he  were  actually  present  when 
the  felony  were  committed.''  If,  therefore,  nothing  appear  but 
that  the  felony  was  committed  while  they  were  both  together, 
the  jury  ought  to  be  directed  to  acquit  the  wife.  Such  pre- 
sumption is,  however,  prima  facie  only,  and  may  be  rebutted, 
either  by  showing  that  the  wife  was  the  instigator  or  more 
active  party,  or  that  the  husband,  though  present,  was  incap- 
able of  coercing,  as  that  he  was  a  cripple  and  bed-ridden,  or 
that  the  wife  was  the  stronger  of  the  two.  Wharton's  Amer- 
ican Criminal  Law,  §  73;  Commonwealth  v.  Trimmer,  1  Mass 


7i8      SECONDARY    RULES     OF    EVIDENCE. 

a  tenant  are  considered  as  annexed  to  his  holding,  un- 
less it  appears  clearly  that  he  intended  them  for  his 
own  benefit,  and  not  to  hold  them  as  he  held  the  farm 
to  which  they  are  adjacent.  (V)  It  is  also  a  maxim, 
"  In  prsesumptione   legis,  judicium   redditur  in  invi- 

tum/'OO1 

429.   In  the  case  of  contracts  between  individuals, 

there  are  many  presumptions  of  law  based  on  policy 

and   general  convenience.     Thus,  it  is   a  conclusive 

presumption  of  law,  that  an  instrument  under  seal  has 

been  given   for  consideration  ; 2  and  this  presumption 

(c)  Doe  d.  Lewis  v.  Rees.  5  C.  &  P.  v.    Millard,    11    Exch.  313  ;    Earl   of 

610  ;  Doe  d.  The  Earl  of  Dunraven  v.  Lisburne  v.  Davies,  L.  Rep.,  1   C.   P 

Williams,  7  C.  &  P.  332  ;  Andrews  v.  259. 

Hailes,  2  E.  &   B.  349  ;  Doe  d.  Croft  (d)  Co,  Litt.  248b  ;    5  Co.  28b  ;    ic 

v.  Tidbury,  14  C.   B.   304  ;  Kingsmill  Co.  94b.     See  infra,  chap.  9, 

476;    State  v.  Parkerson,  1   Strobh.   169;    Commonwealth   v 
Neal,  10  Mass.  152. 

1  Judgment,  in  presumption  of  law,  is  given  against  the 
party  contrary  to  his  own  inclination. 

a  So  in  the  case  of  contracts,  the  contract  will  be  presumed 
to  be  a  legal  one;  Dykers  v.  Townshend,  24  N.  Y.  57  ;  or  if 
one  legal  in  one  place,  and  illegal  in  another,  it  will  be  pre- 
sumed to  be  legal  according  to  the  law  of  the  place  where  it  is 
made;  Brown  v.  Freeland,  34  Miss.  181 ;  or  where  servants  are 
hired  by  one  of  several  part-owners,  they  will  be  presumed  to 
be  hired  by  them  all;  McMahon  v.  Davidson,  12  Min.  357. 
And  see  as  to  peculiar  presumptions  in  the  case  of  certain 
contracts,  Emmonds  v.  Oldham,  12  Tex.  18;  Grimke  v. 
Grimke,  1  Desaus.  366  ;  Erb  v.  Erb,  50  Pa.  St.  388  ;  Bailey  v. 
Clayton,  20  Id.  295  (as  to  when  a  ratification  of  a  contract  will 
be  inferred)  ;  Wilcox  v.  Wilcox,  48  Barb.  327  ;  King  v.  Kelly, 
28  Ind.  89  (where  it  was  held  that  the  law  would  not  presume 
a  contract  to  pay  board  between  members  of  one  family) ; 
Theriott  v.  Bagioli,  9  Bosw.  573  (which  held  that,  in  an  action 
to  recover  of  a  husband  the  price  of  goods  furnished  to  a  wife, 
the  burden  of  proving  them  necessaries  was  on  the  plaintiff)  ; 
Church  v.  Fagin,  43  Mo.  123;  Fox  v.  Hilliard,  35  Miss.  160; 
Cummings  v.  Stone,  13  Mich.  70;  Mandeville  v.  Welch,  5 
Wheat.  277;  Coburn  v.  Odell,  30  N.  H.  (16  Fost.)  540; 
tchoonmaker  v.    Roosa,  17  Johns.  301;    Greer  v.  George,  8 


PRESUMPTIVE    EVIDENCE.  719 

can  only  be  removed  by  impeaching-  the  instrument 
for  fraud.  (V)1  But  there  is  a  remarkable  exception  to 
this  rule,  viz.,  where  an  instrument  under  seal  operates 
in  restraint  of  trade,  in  which  case  a  real  consideration 
must  appear.  (_/")  So,  although  in  the  case  of  con- 
tracts not  under  seal,  a  consideration  is  not,  in  general, 
presumed,  (g)  it  is  otherwise  in  the  case  of  bills  of 
exchange  and  promissory  notes.  (A)1 

430.  Where  goods  entrusted  to  a  common  carriei, 
to  be  carried  for  reward,  are  lost  otherwise  than  by  the 
act  of  God  or  the  Queen's  enemies,  it  is  a  prassumptio 
juris  et  de  jure  that  they  were  lost  by  negligence, 
fraud,  or  connivance  on   his  part.  (7)3     By  the  act  of 

(e)  Bk.  2,  pt.  3.  §  220.  (h)    Stipra,   sect.   I,  sub-sect,    i,    § 

(/)  See   Chitty   on    Con.    9th    Ed.  314. 

619,  where  most  of  the  cases  are  re-  (f)  Bull.  N.  P.  70,  n.  (a) ;    Palmer  v 

ferred  to.  The    Grand   Junction   Railway  Com- 

(g)  Rann  v.   Hughes,  7  T.   R.  350,  pany,  4  M.  &  W.  749. 
»ote. 

Ark.  131 ;  Phelps  v.  Younger,  4  Ind.  450;  Prior  v.  Coulter,  1 
Bail.  (S.  C.)  517  ;  Horn  v.  Fuller,  6  N.  H.  511. 

1  Wearse  v.  .Pierce,  24   Pick.    14  ;  Dickinson   v.   Lewis,  34 
Ala.  638. 

2  And  see  ante,  note  1,  p.  718. 

8  Herring  v.  Wilmington,  &c.  R.  R.  Co.,  10  Ired.  (N.  C.  Law) 
402  ;  Steamer  Niagara  v.  Cordes,  21  How.  (U.  S.)  7  ;  Shaw  v. 
Gardner,  12  Gray  (Mass.)  4SS ;  Mitchel  v.  Western,  &c.  R.  R. 
Co.,  30  Ga.  22  ;  Illinois,  &c.  R.  R.  Co.  v.  Cowles,  32  111.  11O  ; 
St.  John  v.  Eastern  R.  R.  Co.,  1  Allen,  554  ;  Buflft  v.  Troy,  &c 
R.  R.  Co.,  36  Barb.  420  ;  Booman  v.  American  Express  Co.,  21 
Wis.  152;  Stroher  v.  Detroit,  &c.  R.  R.  Co.,  Id.  554;  Ellis  v 
Portsmouth,  &c.  R.  Co.,  2  Ired.  (Law)  138.  "  If  the  plain- 
tiff proves  that  he  has  been  injured  by  an  act  of  the  defendant 
of  such  a  nature,  that  in  similar  cases,  where  due  care  has  been 
taken,  no  injury  is  known  to  ensue,  he  raises  a  presumption 
against  the  defendant,  which  the  latter  must  overcome  by  evi- 
dence, either  of  his  carefulness  in  the  performance  of  the  act, 
or  of  some  unusual  circumstances,  which  makes  it  at  least  as 
probable  that  the  injury  was  caused  by  some  circumstance 
with  which  he  had  nothing  to  do,  as  by  his  negligence." 
Shearman  and  Redfield  on  Negligence,  §  13.     It  was  held  in 


720     SECONDARY    RULES     OF    EVIDENCE. 

God  is  meant  storms,  lightning,  floods,  earthquakes 
and  such  other  events  as  can  not  happen  by  the  inter- 
vention of  man ;  (/)  and  under  the  heads  of  the 
Queen's  enemies  must  be  understood  public  enemies, 
with  whom  the  nation  is  at  open  war  ;  (/£)  so  that  rob- 
bery by  a  mob,  irresistible  from  their  number,  would 
be  no  excuse  for  the  bailee.  (/)  This  is  an  extremely 
severe  presumption,  but  one  which  public  policy  ap- 
pears to  require  ;  although  both  by  the  common  law 
and  by  virtue  of  various  modern  statutes,  common 
carriers  can,  in  many  cases,  limit  their  liability,  (m) 
So,  in  the  case  of  inn-keepers,  before  the  26  &  27 
Vict.  c.  41, — which  has  considerably  modified  their 
liability, — where  the  goods  of  a  traveler  brought  into 
an  inn  were  lost,  it  was  presumed  to  be  through  neg- 
ligence in  the  inn-keeper;  and  the  law  cast  on  him 
the  onus  of  rebutting  this  presumption.  (V)  "  Rigor- 
ous as  this  law  may  seem,"  says  Sir  William  Jones,  (0) 
"  and  hard  as  it  may  actually  be  in  one  or  two  partic- 
ular instances,  it  is  founded  on  the  great  principle  of 
public    utility,   to    which    all    private    considerations 

(J)  Bull.  N.  P.  70,  n.  (a).  («)  Chitty  on  Cont.  gth   Ed.   441  ; 

(k)  Story,  Bailm.  §  489,  5th  Ed.  Story,  Bailm.  §§  472,    473,  5th  Ed. 

(/)  Coggs  v.  Bernard,  2    L.   Raym.  Armistead  v.  Wilde,   17    Q.    B.  261 ; 

0.09,  91S,  per  Holt,  C.  J.  Cashill  v.  Wright,  6  E.  &  B.  891. 

(w)  See  11  Geo.  4  &  1  Will.  4,  c.  68;  (o)  Jones  on  Bailments,  95,  96,  4th 

17  &   18  Vict.  c.    31  ;    and   Chitty  on  Ed. 
Cont.  gth  Ed,  349,  458-465. 

Georgia  R.  R.  Co.  v.  Willis,  28  Geo.  317,  that  were  a  man' 
cattle  were  killed  by  a  railroad  train,  and  the  agent  of  the 
company,  when  applied  to  for  pay  for  the  cattle,  did  not  deny 
the  company's  liability,  but  offered  to  pay  for  them,  and  his 
offer  was  rejected  as  too  small,  and  suit  against  the  company 
brought,  the  onus  of  proving  that  the  killing  of  the  cattle  was 
not  the  result  of  negligence  was  upon  the  company.  Mr. 
Shearman,  in  a  note  to  his  valuable  treatise  on  Negligence 
(p.  16),  remarks.  "  This,  however,  seems  to  us  an  erroneous 
decision.  If  generally  followed,  it  would  discourage  all  com- 
promises of  suits,  and  thus  promote  needless  litigation." 


PRESUMPTIVE    EVIDENCE.  721 

ought  to  yield.  For  travelers,  who  must  be  numer- 
ous in  a  rich  and  commercial  country,  are  obliged  to 
rely  almost  implicitly  on  the  good  faith  of  inn-holders, 
whose  education  and  morals  are  usually  none  of  the  best, 
and  who  might  have  frequent  opportunities  of  associa- 
ting with  ruffians  or  pilferers,  while  the  injured  guest 
could  seldom  or  never  obtain  legal  proof  of  such  com- 
binations or  even  of  their  negligence,  if  no  actual  fraud 
had  been  committed  by  them."  In  this,  as  in  many 
other  instances  of  legal  presumption,  we  may  detect 
the  application  of  the  maxim  "  Multa  in  jure  communi 
contra  rationem  disputandi,  pro  communi  utilitate 
introducta  sunt."  (/)' 

(/ )  Co.  Litt.  70b. 

1  "  Many  things  have  been  introduced  into  the  common 
law,  with  a  view  to  the  public  good,  which  are  inconsistent 
with  sound  reason."  For  examples  see  the  very  valuable 
treatise  of  Dr.  Redfield,  "  The  Law  of  Carriers  and  of  Bail- 
ments, Part  V.  The  Law  of  Common  Innkeepers,  and 
Keepers  of  Stables  in  connection  with  Inns." 
46 


722      SECONDARY    RULES     OF     EVIDENCE. 


SECTION  III. 

PRESUMTTIONS    AND    PRESUMPTIVE    EVIDENCE    IN  CRIM- 
INAL   LAW. 

431.  The  subject  of  presumptions  and  presump- 
tive evidence  in  criminal  law,  requires  a  separate 
consideration.  In  the  present  section  we  accordingly 
propose  to  treat, 

1.  Presumptions  in  criminal  law. 

2.  Presumptive  proof  in  criminal  cases. 

3.  The  principal  forms  of  inculpatory  presumptive 

evidence  in  criminal  proceedings. 


SUB-SECTION  T. 

PRESUMPTIONS    IN    CRIMINAL    LAW. 

PARAGRAPH 

Legalpresumptionsincriminaljurispr11den.ee 432 

Criminal  intent  presumed  from  certain  acts  .....  433 

transferred  from  one  act  to  another  .....  434 

Presumption  of  higher  degree  of  guilt  ......  455 

Maxim  '"Qui  semel   malus,    semper  prcesumitur  esse   malus  eodem 

genere" 436 

Statutory  presumptions  in  criminal  law 437 

Presumptions  for  the  protection  of  accused  persons      ....  438 

432.  The  introduction  of  legal  presumptions  into 
criminal  jurisprudence,  presents  a  question  of  some 
difficulty.  Although  no  person  ought  to  be  con- 
demned in  a  court  of  justice,  unless  the  tribunal  really 
and  actually  believes  in  his  guilt;  yet,  even  here,  the 
principle  of  legal  presumption  may,  with  due  discre- 


PRESUMPTIVE    EVIDENCE.  723 

tion,  be  advantageously  resorted  to,  for  the  protection 
alike  of  the  community  and  the  accused.  And  accor- 
dingly we  find,  that  not  only  are  the  general  presump- 
tions of  law  recognized  in  criminal  jurisprudence,  but 
that  it  has  peculiar  presumptions  of  its  own.  The 
universal  presumption  of  acquaintance  with  the  penal 
law,  (  q)  and  the  maxim  "  res  judicata  pro  veritate  ac- 
cipitur,"  (r)  exist  there  in  full  force.  Ignorance  of 
any  law  which  has  been  duly  promulgated  can  not  be 
pleaded  in  a  criminal  court ;  and  a  person  who  has 
once  been  tried  for  an  offense,  under  circumstances 
where  his  safety  was  in  jeopardy  by  the  proceedings, 
can  not,  if  acquitted,  be  tried  again  for  that  offense, 
whatever  new  arguments  to  prove  his  guilt  may  be 
discovered,  or  whatever  fresh  proofs  of  it  may  come  to 
light. 

433.  A  criminal  intent  is  often  presumed  from 
acts  which,  morally  speaking,  are  susceptible  of  but 
one  interpretation.  When  for  instance  a  party  is 
proved  to  have  laid  poison  for  another,  or  to  have  de- 
liberately struck  him  with  a  deadly  weapon,  or  to  have 
knowingly  discharged  loaded  firearms  at  him,  it  would 
be  absurd  to  require  the  prosecutor  to  show  that  he 
intended  death  or  bodily  harm  to  that  person.  So, 
where  a  baker  delivered  adulterated  bread  for  the  use 
of  a  public  asylum,  it  was  held  unnecessary  to  allege 
that  he  intended  it  to  be  eaten,  as  the  law  would  imply 
that  from  the  delivery.  (V)1  The  setting  fire  to  a 
building  is  evidence  of  an  intent  to  injure  the  owner, 
although  no  motive  for  the  act  be  shown  ;  (/)  and  the 

(q)  Introd.  part  2,  §   45,  and  supra,      cK  9. 
sect.  2,  sub-sect.  r.  (s)  R.  v.  Dixon,  3  Mau.  &  S.  II. 

(r)  Introd.  part  2,  §  44  and    infra,  {()  R.  v.  Farrington,  R.  &  R.  207. 

1  And  see  as  to  the  presumption  arising  in  the  case  of  sale 
of  diseased  meat.     Seibright  v.  State,  2  W.  Va.  591. 


724     SECONDARY    RULES     OF    EVIDENCE. 

uttering  a  forged  document,  is  conclusive  of  an  intent 
to  defraud  the  person  who  would  naturally  be  affected 
by  it — an  inference  which  is  not  removed,  merely  by 
that  party  swearing  that  he  believes  the  accused  had 
no  such  intention,  (w)1  So  where  a  party  deliberately 
publishes  defamatory  matter,  malice  will  be  presumed, 
(z/)  3  In  such  cases  res  ipsa  in  se  dolum  habet  (x) — 
the  facts  speak  for  themselves.  Presumptions  of  this 
kind  are  so  conformable  to  reason,  that  moral  convic- 
tion and  legal  intendment  are  here  in  perfect  harmony. 
But  the  safety  of  society,  joined  to  the  difficulty  of 
proving  psychological  facts,  (  y)  renders  imperatively 
necessary  a  presumption  which  may  seem  severe  ;  viz., 
that  which  casts  on  the  accused,  the  onus  of  justifying 
or  explaining  certain  acts  which  are  prima  facie  illegal. 
It  is  partly  on  this  principle  that  sanity  is  presumed 
in  preference  to  innocence.  (Y)3     So,  a  party  who   is 

(n)  R.  v.   Sheppard,    R.  &    R.  169.  shall   be  sufficient  to  prove  that  the 

See  also  R.  v.  Mazagora,  Id.  291  ;  R.  party  accused  did  the  act  charged  with 

v.  Nash,  2  Den.  C.  C.  493.     By  24  &  an  intent  to  defraud." 

25  Vict.  c.  98,  s.  44,  it  is  enacted,  that  (v)  Haire  v.  Wilson,  9  B.  &  C.  643. 

"it  shall  be  sufficient,  in  any  indict-  (x)  Bonnier,  Traite  des  Preuves,  §§ 

ment   for    forging,    altering,    uttering,  676,  677. 

offering,  disposing  of,  or  putting  off  (y)  "  Comen  erudition  est  que  l'en- 

any  instrument   whatsoever,  where  it  tent  d'un   home   ne   serra   trie,  car  le 

shall  be  necessary  to   allege  an   intent  Diable  n'ad   conusance  de  l'entent  de 

to  defraud,  to   allege    that    the  party  home  ;"  per  Brian,  C.  J.,  P.  17  Edw. 

accused  did  the  act  with  intent  to  de-  IV.    2   A.  pi.    2.     See,    however,  that 

fraud,   without  alleging   an   intent  to  case. 

defraud   any  particular  person  ;    and  (2)  2  Ev.  Poth.  332  ;  Answer  of  the 

on  the  trial  of  any  such  offense,  it  shall  Judges  to  the  house  of  Lords,  8  Scott, 

not  be  necessary  to  prove  an  intent  to  N.  R.  595,  601  ;  1  Car.  &  K.  134,  135. 

defraud  any  particular  person,  but  it  See  supra,  sect.  I,  sub-sect.  3,  §  332. 

1  An  affidavit  of  forgery  devolves  upon  the  claimant  under 
the  deed  the  burden  of  proving  its  proper  execution,  if  there 
be  no  subscribing  witness.     Willis  v.  Lewis,  28  Tex.  185. 

a  See  Morgan's  Law  of  Literature,  vol.  1,  ch.  2,  of  Libel, 
passim. 

'  Ante,  note  1,  p.  567  ;  and  see  Wharton  on  Homi- 
cide,   §    665.        The    rule     as    to    conflicting    presumptions 


PRESUMPTIVE    EVIDENCE.  725 

proved  to  have  killed  another,  is  presumed  in  the  first 
instance  to  have  done  it  maliciously,  or  at  least  unjus- 
tifiably ;  and,  consequently,  all  circumstances  of  justi- 

of  innocence  and  sanity  is  not  always  administered  uniformly. 
Says  Wharton  on  Homicide,  §  668  :  "The  conflict  which  has  been 
just  noticed  has  arisen  from  the  habit  of  viewing  the  plea  ol 
insanity  as  an  ordinary  defense  of  the  nature  of  confession 
and  avoidance.  Such,  however,  is  not  the  case.  It.  is  rather 
in  the  nature  of  a  plea  to  the  jurisdiction,  or  a  motion  to 
change  the  venue.  The  defendant,  through  his  counsel  and 
friends,  comes  in  and  says  that  he  is  not  amenable  to  penal 
jurisdiction.  He  is  not  a  moral  agent;  he  is  insane;  he  is 
not  the  object  of  penal  discipline.  Such  a  plea,  as  is  else- 
where argued,  may  be  regarded,  when  it  is  set  up  for  the  pur- 
pose of  showing  entire  unamenability  to  penal  process,  as  a 
purely  extrinsic  application,  to  be  made  out  by  a  preponder- 
ance of  proof.  Otherwise  the  law  approaches  those  charged 
with  crime  as  a  wolf  in  sheep's  clothing.  To  hold  that  a 
reasonable  doubt  as  to  a  defendant's  sanity  should  require  his 
permanent  imprisonment  as  a  dangerous  lunatic,  would  be  to 
turn  a  maxim,  apparently  benignant,  into  an  instrument  of 
gross  oppression.  A  man  is  tried  for  an  assault.  The  jury 
have  a  reasonable  doubt  of  his  sanity,  and  find  him,  under  the 
statutes,  a  dangerous  lunatic  ;  and  this  is  a  necessary  conse- 
quence of  the  doctrine  here  criticised.  Yet  from  such  a  con- 
sequence we  revolt.  To  extinguish  a  man's  civil  existence, — 
to  place  him  under  close  confinement  for  life, — to  deprive 
him  of  the  control  of  his  estate,  and  of  access  to  his  family, 
something  more  than  reasonable  doubt  should  be  required. 
For  so  total  an  extinction,  not  only  of  liberty  but  of  civil  and 
social  capacity,  we  should  at  least  exact  a  preponderance  of 
proof.  The  difficulty  is  attributable  to  the  fact  that  most 
cases  in  which  insanity  comes  up  as  a  defense  are  those  of 
murder;  and  to  be  decreed  to  be  civiliter  mortuus,  and  to  be 
imprisoned  as  a  dangerous  lunatic,  is  better  than  to  be  hung. 
But  the  principle  we  are  here  discussing  applies  to  all  crim- 
inal prosecutions;  and  if  a  reasonable  doubt  as  to  sanity 
requires  a  verdict  of  dangerous  lunacy,  under  the  statutes,  in 
a  homicide  case,  it  requires  such  a  verdict  in  a  case  of  assault 
If  in  the  former  case  the  court  must  instruct  the  jury  to  give 
a  verdict  of  dangerous  lunacy  if  they  have  a  reasonable  doubt, 
the  same  instruction  must  be  given   in  the  latter  case." 

"  But  supposing  insanity  is  set   up,  not  for  the  purpose  01 


726     SECONDARY    RULES     OF    EVIDENCE. 

fixation  or  extenuation  are  to  be  made  out  by  the  ac- 
cused, unless  they  appear  from  the  evidence  adduced 
against  him.  (a)x 


(a)  Fost.  Cr.  Law,  255.  290.  It  may 
be  a  question,  whether  this  presump- 
tion holds  in  cases  of  suicide,  where 
the  only  fact  established  before  a  coro- 
ner's jury  is,  that  the  deceased  put  a 
period  to  his  own  existence,  and  there 
is  no  evidence  as  to  the  state  of  his 
mind  at  the  time.  The  following  rea- 
sons seem  to  show  that  the  presump- 
tion does  not  apply  in  such  cases: 
First,  the  principle  fails.  The  pre- 
sumption of  malice  from  slaying  is 
only  a  rebuttable  presumption,  adopted 
on  the  ground  that,  to  call  on  a  living 
person  to  justify  a  homicide,  may  be 
very  advisable  on  grounds  of  public 
policy,  and  can  work  no  hardship  to 
the  accused  : — an  argument  wholly 
inapplicable  to  the  case  of  a  person 
who,  being  no  more,  can  not  be  called 
on  to  justify  or  explain  anything.    Sec- 


ondly, presumptions  ought  to  be  based 
on  whnt  usually  and  generally  exists. 
In  many,  probably  most  cases  of  sui- 
cide, mental  alienation,  in  some  form 
or  other,  is  present  ;  in  murder  it  is 
quite  otherwise.  Thirdly,  the  man 
who  commits  murder  under  the  im- 
pression that  he  may  do  so  with  im- 
punity, has  only  moral  and  religious 
feelings  to  subdue  ;  he  who  destroys 
himself,  has  also  to  struggle  against 
the  primary  law  of  nature — self-preser- 
vation. And  lastly,  there  seems  no 
no  good  reason  why  the  law  should  in 
this  case  lose  sight  of  its  own  maxim, 
"  Nemo  praesumitur  esse  immemor 
sure  seternze  salutis,  et  maxime  in  ar- 
ticulo  mortis."  6  Co.  76a.  The  laws 
of  some  countries,  we  believe,  have  es- 
tablished it  as  a  pnesumptio  juris  et 
de  jure,  that  all  suicides  are  insane.1 


transferring  the  defendant  to  the  category  of  non-responsible 
agents,  but  for  the  purpose  of  meeting  the  allegation  of 
malice  in  an  indictment,  does  the  same  rule  apply?  Suppos- 
ing, in  other  words,  the  defense  is, — 'We  do  not  say  that  the 
defendant  is  a  maniac,  or  an  idiot,  who  is  to  be  put  in  cus- 
tody as  permanently  and  dangerously  insane,  and  is  to  have 


1  So,  if  a  man  points  a  gun  at  another,  within  shooting 
distance,  the  presumption  is  that  the  gun  is  loaded  ;  and  the 
burden  is  on  the  accused  to  prove  that  it  was  not  loaded,  and 
tUit  he  knew  that  it   was  not.     Caldwell  v.  State,  5  Tex.  18. 

2  The  great  preponderance  of  the  English  authorities  on 
the  subject  of  "  suicide  "  or  "  self-destruction,"  is  to  the  effect 
that  the  two  terms  are  not  synonymous,  the  term  "suicide" 
being  held  to  mean  a  "  voluntary  self-destruction,"  such  as 
woidd  avoid,  as  being  in  fraud  of,  a  policy  of  life  insurance 
which  bars  "suicide;"  while  the  other  is  the  act  itself,  which 
may  be  superinduced  by  mental  disease.  All  suicides  not 
perpetrated   "  in    the    madness   of   delirium  "  are  "  voluntary. 


PRESUMPTIVE    EVIDENCE.  727 

434.  A  criminal  intent  is  sometimes  transferred 
by  law  from  one  act  to  another,  the  maxim  being,  "In 
criminalibus  sufficit  generalis  militia  intentionis  cum 

his  civil  existence  terminated;  but  we  say  that  he  is  predis- 
posed to  insanity,  and  that  when  excited  his  reason  is  so 
swept  away  by  the  current  of  this  insane  tendency,  that  he  is 
incapable  of  deliberate  intent.'  Are  we  here  to  concede  that 
reasonable  doubt  as  to  the  defendant's  capacity  in  this  respect 
is  to  acquit;  or  must  we  here  also,  in  order  to  acquit,  require 
that  such  incapacity  should  be  made  out  by  a  preponderance 
of  proof?  Falling  back  on  the  reasoning  heretofore 
expressed,  we  must  hold  that  when  a  defendant  is  charged 
with  a  deliberate  homicide,  and  he  offers  evidence  to  show 
that  the  condition  of  his  mind  was  such  (by  reason  of  insane 
predisposition)  that  he  was  incapable  at  the  time  of  deliber- 
ation ;  then,  if  the  jury  has  a  reasonable  doubt  as  to  such 
capacity,  he  is  to  be  acquitted  of  the  higher  grade  and  con- 
victed of  the  lower  grade  of  the  offense.  And  this  is  con- 
ceded even  by  those  courts  who  hold  that  on  the  question  of 
insanity,  as  an  absolute  bar,  there  must  be  a  preponderance 
of  proof.  Indeed,  when  we  examine  the  reasoning  of  the 
courts  of  Pennsylvania  and   Massachusetts  in  the  group   of 


suicides."  Cooper  v.  Massachusetts  Mutual  Life  Insurance 
Company,  102  Mass.  227.  In  the  United  States  the  decisions 
are  unanimously  to  the  effect  that  suicide  not  only  raises  no 
presumption  of  insanity,  but  that  one  taking  his  own  life  is 
presumed  to  do  so  in  his  right  mind.  In  St.  Louis  Mutual 
Ins.  Co.  v.  Graves,  6  Bush.  (Ky.)  268,  the  court  was  equally 
divided  whether  the  act  of  self-killing  was  induced  by  moral 
insanity  or  not,  but  that  case  does  not  disturb  the  presump- 
tion as  above  stated,  which  will  be  found  declared  in  Terry 
v.  Insurance  Co.,  1  Dill.  403  ;  Breasted  v.  Farmers'  Loan,  &c. 
Co.,  4  Hill,  N.  Y.  78;  S.  C.,8  N.  Y.  299;  Eastbrook  v.  Union, 
&c.  Co.,  54  Me.  224;  Hartman  v.  Keystone  Ins.  Co.,  21  Pa. 
St.  86,  466;  Dean  v.  Am.  Mut.  Ins.  Co.,  4  Allen,  96;  S.  C. 
with  note,  1  Big.  Ins.  Rep.  195  ;  Cooper  v.  Mass.  &c.  Ins.  Co., 
102  Mass.  227;  Nimick  v.  Ins.  Co.,  1  Big.  Ins.  Rep.  689; 
Grayham  v.  Commonwealth,  16  B.  Mon.  587;  Kriel  v.  Com- 
monwealth, 5  Bush.  (Ky.)  362  ;  Mutual  Life  Ins.  Co.  v.  Terry, 
2  Ins.  Law  Journal,  571;  Van  Zandt  v.  Mutual  Benefit  Ins. 
Co.,  55  N.  Y.  169;  Gay  v.  Union,  &c.  Ins.  Co.,  9  Blatchf.  143  ; 
Equitable  Life  Ins.  Co.  v.  Patterson,  41  Ga.   338  ;  Mallory  v 


728      SECONDARY    RULES    OF    EVIDENCE. 

facto  paris  gradus."  (p)  A.,  maliciously  discharging  a 
gun  at  B.,  kills  C. ;  A.  is  guilty  of  murder,  for  the 
malice  is  transferred  from  B.  to  C.  (V)     And  the  same 

{b)  Bacon,  Max,  Law,  Reg.  15.    See  (c)  1  East,  P.  C.  230;  R.  v.  Smith,  I 

also  3  Inst.  51.  Dearsl.  C.  C.  559. 

cases  which  relate  to  the  question  of  reasonable  doubt,  we 
find  that  the  distinction  here  expressed  lies  at  the  basis  of 
their  adjudications.  To  find  a  defendant  irresponsible  requires 
a  preponderance  of  proof.  But  whenever  there  are  various 
grades  in  an  offense,  then  a  reasonable  doubt  as  to  whether 
the  higher  grade  exists  requires  a  finding  for  the  lower  grade. 
And  whenever  intent  is  a  necessary  constituent  of  the  offense, 
then  a  reasonable  doubt  as  to  intent  requires  an  acquittal. 
If  there  be  a  logical  inconsistency  in  the  views  just  expressed, 
such  inconsistency  must  be  defended  by  an  appeal  to  the 
maxim  in  dubio  mitius.  If,  on  an  indictment  for  an  assault, 
insanity  is  suspected  by  the  jury,  and  if  a  verdict  of  insanity 
would  subject  the  defendant  to  far  more  rigorous  penalties  than 
a  conviction  of  assault,  then  there  can  be  no  verdict  of  insanity, 
simply  because  of  a  reasonable  doubt  of  sanity.  On  the 
other  hand,  on  an  indictment  for  murder,  where  a  conviction 
would  impose  severer  penalties  than  a  verdict  of  insanity, 
doubts  must  tell  in  favor  of  the  more  benignant  application 
of  the  law." 


Travelers'  Ins.  Co.,  1  Insurance  Law  Journal,  891 ;  American 
Life  Ins.  Co.  v.  Isett,  2  Id.  893;  Coneston  v.  Connecticut 
Mutual  Ins.  Co.,  3  Id.  13;  McClure  v.  Mutual  Life  Ins.  Co., 
Id.  246;  Pierce  v.  Travelers'  Ins.  Co.,  Id.  404;  Jacobs  v. 
National  Ins.  Co.  of  U.  S.,  4  Id.  327  ;  Knickerbocker  Ins.  Co. 
v.  Peters,  Id.  414;  Chapman  v.  Republic  Life  Ins.  Co.,  Id 
488;  Knickerbocker  Life  Ins.  Co.  v.  Peters,  Central  Law 
Journal,  October  8,  1875. 

"The  presumption  of  law  111  all  cases  of  death  is,  that  it 
was  caused  by  accident,  as  in  drowning,  poisoning,  &c,  or  in 
the  natural  way,  when  no  cause  of  death  can  be  discovered. 
47  N.  Y.  52.  The  burden  of  proving  that  the  insured  died  by 
his  own  hand,  is  on  the  insurer.  This  proved,  the  burden  is 
then  thrown  on  the  representatives  of  the  insured,  to  show 
that  lie  was  insane  at  the  time,  and  did  not  commit  the  act 
of  self-destruction  with  the  knowledge  that  it  would,  and  the 
intent  that  it  should,  result  in  death.  A  person  is  presumed 
to  be   sane,  and  to   know  the  consequences   of  his  acts,  until 


PRESUMPTIVE     EVIDENCE.  729 

holds  where  poison  laid  by  A.  for  B.,  is  accidentally 
taken  by  C.  (d)1  It  is  on  this  principle,  that  a  party 
who  accidently  kills  himself  in  the  attempt  to  murder 
another,  is  deemed  felo  de  se.  (e) 

(d)  Plowd.  474  ;  1  East,  P.  C.  230.  {e)  1  Hale,  P.  C.  413  ;  1  East,  P.  C. 

230. 

1  See  Wharton  on  Homicide,  §§  42-48.  If  A.  having 
malice  against  B.,  strikes  at  and  misses  him,  but  kills  C,  this 
is  murder  in  A.,  but  if  the  blow  had  been  without  malice 
and  under  such  circumstances,  that  if  B.  had  died  it  would 
have  been  but  manslaughter,  the  killing  of  C.  would  have 
been  but  manslaughter.  Id.  ;  State  v.  Cooper,  1  Green,  N.  J. 
3S1  ;  State  v.  Benton,  2  Dev.  &  Bat.  196  ;  State  v.  Fulkerson, 
1  Phil.  (N.  C.)  L.  233;  and  see  the  circumstances  varied  in 
Angel  v.  State,  36  Tex.  542  ;  State  v.  Smith,  2  Strobh.  77  ; 
Bretton  v.  State,  10  Humph.  103  ;  Morris  v.  Piatt,  32  Conn. 
75.  "  Were  the  question  still  open,"  says  Wharton  (on  Homi- 
cide, §  50),  "  then  it  would  be  both  humane  and  philosophical 
to  hold  that,  so  far  as  concerns  B.,  the  person  whom  A. 
intends  to  kill,  but  does  not  actually  kill, A.  is  guilty  only  of  an 
attempt  to  kill.     What  A.'s  offense  is  as  to  C,  who  is  not  seen 


the  contrary  appears.  Suicide  itself  is  not  evidence  of  insan- 
ity." See  authorities  on  all  above  points,  in  Knickerbocker 
Life  Ins.  Co.  v.  Peters,  Maryland  Court  of  Appeals,  April 
Term,  1875,  in  Central  Law  Journal,  Oct.  8,  1S75. 

A  legal  definition  of  suicide  involves  the  deliberate  ter- 
mination of  one's  existence  while  in  the  possession  and 
enjoyment  of  his  mental  faculties.  Self-Slaughter  by  an  in- 
sane man  or  a  lunatic  is  not  an  act  of  suicide  within  the 
meaning  of  the  law.  4  Bl.  Com.  189  ;  1  Hales,  P.  C.  411,  412. 
But  is  self-destruction  entitled  to  the  presumption  of  suicide, 
so  generally  accorded  it  ?  Is  not  the  fact  of  self-killing  so 
repugnant  to  a  healthy  or  sane  state  of  mind,  so  unexampled 
in  cases  of  mens  sana  in  compore  sans  as  to  warrant  the  rule 
to  be  stated  exactly  the  reverse  of  what  it  is  now  ?  There 
appears  to  be  much  to  be  said  in  favor  of  the  latter  view. 
Let  us,  then,  without  attempting  an  argument — but  taking 
Juvenal's  definition  of  perfect  health — /.  <?.,  a  sound  mind  in  a 
sound  body — be  allowed  to  submit  a  few  considerations  which 
are  capable  of  being  urged  against  the  presumption  of  sui- 
cide in  cases  of  self-destruction  ;  1  st,  as  to  a  sound  body.  It 
will  hardly  be  claimed   that   self-destruction  is  ever  a  purely 


73Q      SECONDARY    RULES     OF    EVIDENCE. 

435.  In  some  cases  the  law  goes  further,  and  at- 
taches to  acts  criminal  in  themselves,  a  degree  of  guilt 
higher  than  that  to  which  they  are  naturally  entitled. 

by  A.,  but  who  accidentally  interposes,  and  receives  a  fatal 
wound,  depends  upon  whether  the  shooting  was  of  such  a  char- 
acter (e.  g.,  from  the  place  of  firing  being  one  in  which  persons 
are  accustomed  to  pass)  as  implies  negligence  in  A.  If  so,  then 
the  kiliinof  of  C.  is  manslaughter.  But  as  A.  did  not  intend  to 
kill  C,  then  the  killing  of  C.  is  not,  under  such  circumstances, 
murder.  That  the  intent  to  kill  B.,  and  the  actual  killing  of 
C,  can  not  be  lumped  so  as  to  make  an  offense,  is  illustrated 
by  the  fact  that  supposing  B.  to  have  been  killed,  and  the  shot 
to  have  pierced  him  and  then  killed  C,  then  the  killing  of  B. 
and  C.  are  distinct  offenses,  to  be  separately  tried.  Vaughan 
v.  Com.,  2  Va.  Ca.  273;  State  v.  Benham,  7  Conn.  414; 
State  v.  Standifer,  5  Porter,  523  ;  People  v.  Warren,  1  Parker 
C.  R. 


animal  impulse.  If  we  except  the  scorpion,  which  reptile,  it 
is  ~nid,  will  sting  itself  to  death,  when  surrounded  by  inevit- 
able destruction,  man  is  the  only  being  in  animal  life,  that 
ever  attempts  self-destruction.  But  this  act  on  the  part  of 
the  scorpion,  certainly  shows  a  reasoning  power,  a  knowledge 
of  its  own  impending  destruction,  and  of  the  fact  that  no 
avenue  of  escape  is  open  to  it,  which  would  lead  us  to  hesitate 
in  pronouncing  it  a  purely  animal  or  physical  act.  The  suicide 
of  the  scorpion,  then,  being  deliberate,  the  presumption  is 
against  its  insanity.  But,  even  if  it  were  not,  no  argu- 
ment can  be  drawn  from  a  single  exception.  If  the  in- 
stinct of  self-preservation  in  every  animate  thing  is  the 
strongest  possible  instinct  it  possesses,  it  would  at  least  seem 
difficult  to  reconcile  the  fact  with  a  presumption  that,  if  one 
died  bv  his  own  hand,  over  which  he  had  complete  mental 
control,  he  died  willingly.  If  not  a  purely  animal  act, 
the  self-destruction  must  be  superinduced  by  mental  condi- 
tion. For  the  opinion  that  men,  in  their  sane  minds,  evei 
commit  self-destruction,  it  is  necessary  to  search  backward 
in  the  history  of  suicide.  The  earliest  cases  of  suicide  would 
seem,  at  first,  to  have  been  the  result  of  pure  deliberation  and 
of  anything  but  insanity,  but  a  contrary  view  of  the  circum- 
stances is  far  from  impossible.  The  two  earliest  cases  are 
those  of  Saul  and  his  armor-bearer  (1  Sam.  xxxi.),  but  the 
former,  althoug"   apparently  the  result  of  an  instinct  like  the 


PRESUMPTIVE    EVIDENCE.  731 

It  was  on  this  principle  that  the  entering  into  meas- 
ures for  deposing  or  imprisoning  the  king,  was  held 
to  be  an  overt  act  of  compassing  his  death.  (/")     So 

(/)  Fost.  Cr.  Law,  195-6. 

scorpion's,  whose  last  hope  of  physical  safety  has  disappeared, 
might  not  unnaturally  have  been  the  result  of  despair,  and 
mental  agony,  which  arising  from  the  continual  denunciations 
he  had  received  from  the  prophet,  until,  forsaken  of  God  (1 
Sam.  ch.  xxviii.),  and  having  received  his  final  doom  from 
Samuel  in  the  witches'  cave — coupled  with  the  death  which  he 
saw  approaching — might  well  have  driven  any  man  insane. 
We  have  only  the  bare  record  of  the  servant's  act,  but  the 
master's  desperation  and  mania  may,  not  unnaturally,  have 
communicated  itself  to  his  constant  attendant,  and  rendered 
him  melancholy  and  tired  of  life,  which  is  a  form  of  insanity 
at  least.  The  death  of  Samson,  if  a  suicide  at  all  (though 
we  have  no  record  that  it  was — and  the  presumption  of  the 
instinct  of  self-preservation  and  love  of  life,  even  in  a  blind  and 
bound  old  man  (Judges,  xvi.  30),  is  against  the  idea — would 
come  nearer  to  an  instance  of  sane  deliberation  than  either. 
Besides  which,  we  must  remember  that  there  was  no  penalty 
in  the  mosaic  law  against  suicide,  or  no  discouragement  of 
such  an  act,  though  Joseph  us  says,  that  it  was  the  custom  in 
Judea  to  leave  the  bodies  of  those  dying  by  their  own  hands, 
unburied  till  after  sunset.  In  considering  the  suicides  of 
Themistocles,  Demosthenes,  Hannibal,  and  Cato  of  Utica,  we 
must  remember  that,  without  faith  in  a  future  state  of  retribu- 
tion, these  historic  men  are  represented  as  preferring,  after 
rational  calculation,  annihilation  to  hopeless  torture  or  degra- 
dation;" but  what  is  a  state  of  abject  hopelessness,  a  state  in 
which  the  attribute  of  hope,  the  nearest  and  most  vital  attri- 
bute of  mental  life,  is  entirely  wanting,  but  a  state  of  melan- 
cholia, which  is  insanity?  Pythagoras  held  that  no  man  had 
the  right  to  leave  his  post  without  an  order  from  his  com- 
mander, but  other  philosophers  reasoned  that,  as  man's  life  was 
his  own,  he  could  dispose  of  it  as  he  pleased.  The  Stoics, 
the  disciples  of  Zeno,  taught  that  suicide,  under  certain  cir- 
cumstances, was  right ;  that  as  man  had  nothing  to  fear  after 
death,  he  was  at  liberty  to  take  his  own  life  whenever  it 
became  irksome  to  him.  Nay  more,  under  certain  circum 
stances,  they  even  prescribed  it  as  a  duty.     Seneca,  Epist.  70. 

But  the  same  remark    may  be   made  in    this  case,   namely, 
that  a  state  of  utter  hopelessness  is  only  a  species  of  mental 


732     SECONDARY    RULES     OF    EVIDENCE. 

if  a  man,  without  justification,  assaults  another  with 
the  intention  of  giving  him  only  a  slight  beating,  and 
death  ensues,  he  is  held  to  be  guilty  of  homicide.  (jfy 

(g)  4  Blackst.  C.  200. 

1  And  so  where  a  correction,  administered  by  one  having 
lawful  authority,  exceeds  the  bounds  of  due  moderation,  and 
death  ensues,  it  may  be  either  murder  or  manslaughter 
according  to  the  circumstances.  Wharton  on  Homicide,  §  165  ; 
see  State  v.  Harris,  63  N.  C.  1.  So  in  United  States  v.  Free- 
man, it  was  said  that  if  a  seaman  is  in  a  state  of  great  debil- 
ity and  exhaustion,  so  that  he  can  not  go  aloft  without  dan- 
ger of  death  or  enormous  bodily  injury,  and  the  facts  are 
known  to  the  master,  who  notwithstanding  compels  the  sea- 
man, by  moral  or  physical  force,  to  go  aloft,  persisting  with 
brutal  malignity  in  such  course,  and  the  seaman  falls  from 
the  mast,  and  is  drowned  thereby,  it  is  murder  in  the  master, 
but  if  there  be  no  malice  in  the  master,  is  manslaughter. 
As  to  excessive  punishment  by  a  schoolmaster;  Com.  v.  Ran- 
dall, 4  Gray  (Mass.)  36.  So  death  in  consequence  of  a  prac- 
tical joke — e.  g.,  as  by  shooting  off  a  gun  to  frighten  a  person 
(State  v.  Roane,  2  Dev.  58),  will  be  manslaughter.  Wharton 
on  Crimes,  §  164. 

insanity,  since  hope  is  a  mental  attribute,  and  a  mind  lacking 
any  one  of  its  attributes,  is  just  as  much  insane  (that  is,  non- 
sane),  as  a  body  lacking  any  one  of  its  physical  attributes 
of  sensation.  Let  us  now  look  at  those  historical  periods 
when  the  fashion  of  self-destruction  has  been  prevalent.  In 
some  parts  of  India,  (we  condense  from  a  valuable  paper  read 
before  the  Medico-Legal  Society  of  the  city  of  New  York,  in 
September.  1875,  by  R.  S.  Guernsey,  Esq.,  of  the  New  York  bar, 
entitled,  "  The  Penal  Laws  relating  to  Suicide  in  Ancient  and 
in  Modern  Times,"  in  which  the  author  comprehensively 
treated  of  the  subject  in  its  legal,  social,  moral,  and  religious 
aspects)  suicide  was  once  considered  meritorious,  but  the  self- 
immolation  of  widows  on  the  funeral  pyres  of  their  husbands 
is  no  longer  permitted.  In  China,  suicide  is  by  no  means 
uncommon,  and  no  disgrace  attaches  to  the  victim  of  his  own 
violence,  or  to  his  family.  In  Japan,  suicides  are  fre- 
quent, and  the  taking  of  one's  life  is  often  looked  apon  as 
meritorious.  When  an  official  has  failed  in  the  performance 
of  his  duty,  he  has  the  privilege  of  performing  hari-kari,  or 
disembowelling  himself,  to  save    him  the  disgrace  of  dying  by 


PRESUMPTIVE    EVIDENCE.  733 

And  if  several  persons  go  out  with  the  intention  of 
committing  a  felony,  and  in  the  prosecution  of  the  gen- 
eral design  one  of  them  commits  any  other  felony,  all 
are  accountable  for  it.  (Ji) 

(h)  1  Hale,  P.  C.  439- 

the  hand  of  the  executioner.  If  he  avails  himself  of  the 
privilege,  his  property  is  saved  from  forfeiture  and  his  family 
from  dishonor.  In  some  countries  the  act  of  suicide  is  looked 
upon  as  heroic,  and  frequently  the  sons  of  the  self-murderer 
are  rewarded  for  the  courage  of  their  father,  with  important 
appointments  and  promotions. 

Egesius  was  said  to  be  so  eloquent  in  praise  of  death  that 
hundreds  who  heard  him  made  away  with  themselves,  and 
suicide  became  epidemic,  until  Ptolemy,  alarmed  at  the  spread 
of  the  infatuation,  ordered  Egesius  away  from  Alexandria,  and 
the  people  at  once  came  to  their  senses. 

At  one  time  in  France  poison  was  furnished  to  all  who 
could  give  satisfactory  proof  that  it  was  better  for  them  to 
die  than  to  live.  A  cobbler,  who  had  determined  to  kill  him- 
sel;,  thought  he  would  do  it  with  frlat ;  so,  having  prepared 
his  poison,  he  began  a  letter  which  was  to  be  read  after  his 
death,  and  to  be  talked  of  throughout  the  province.  He 
started  off  with  a  quotation,  and  continued,  "  Thus  says 
Moliere,"  but  fearing  that  he  had  erred  in  attributing  the  re- 
mark to  Moliere,  he  took  down  his  favorite  author  and  began 
to  read.  After  an  hour's  pleasant  communion  with  the  great 
writer,  he  put  the  poison  away  and  went  to  work  at  his  last. 

The  Milesian  virgins  once  became  afflicted  with  the  insane 
notion  that  they  should  commit  suicide,  and  many  of  them 
obeyed  the  impulse.  A  law  was  passed  ordaining  that  the 
body  of  the  suicide  should  be  dragged  naked  through  the 
streets,  and  this  effectually  dispelled  the  illusion.  Some  of 
the  Roman  jurists  said  that  suicide  was  a  felony,  unless  per- 
mitted by  the  emperor.  Under  one  emperor  the  soldiers 
were  set  to  ditching  and  making  sewers.  Mortified  at  what 
they  looked  upon  as  an  ignominy,  many  of  them  committed 
suicide.  Under  another  a  soldier  attempting  suicide  was 
treated  as  a  deserter,  until  Domitian  decreed  that  the  suicide 
of  an  accused  person  should  entail  upon  him  the  dishonor 
that  would  have  attached  to  him  had  his  crime  been  proved. 

The  Indians  of  South  America,  when  oppressed  beyond 
endurance  by  their  Spanish  conquerors,  made  away  with  them- 
selves in  great  numbers.     They  were   checked   only  by  being 


734      SECONDARY    RULES     OF    EVIDENCE. 

436.  The  presumptions  in  the  two  preceding 
articles,  are  particular  cases  of  the  maxim  "  Qui  semel 
malus,  semper  praesumitur  esse  malus  eodem  genere," 

told  that  if  they  did  not  desist  from  the  practice,  their  mas- 
ters would  commit  suicide  too,  and  follow  them  into  the  next 
world,  where  their  toils  and  torments  should  be  increased 
tenfold.  This  threat  had  the  desired  effect.  There  is  little 
suicide  among  the  North  American  Indians.  It  is  only  the 
squaws  who  kill  themselves.  They  always  do  this  by  hang- 
ing to  a  tree,  and  invariably  select  the  smallest  tree  that  will 
answer  the  purpose,  believing  that,  in  the  next  world,  they  will 
be  obliged  to  drag  the  tree  about  with  them  forever. 

Among  the  early  Christians  there  was  an  ardent  longing 
for  martyrdom,  and,  under  the  influence  of  Tertullian's  say- 
ing, "  The  blood  of  the  martyrs  is  the  seed  of  the  church," 
numbers  of  them  fell  victims  to  their  religious  fanaticism. 
To  such  an  extent  was  the  frenzy  carried,  that  a  Bishops'  Coun- 
cil, in  the  fifth  century,  decreed  that  suicide  was  the  effect  of 
diabolical  influence,  and  thereafter  the  church  treated  it  as  a 
sin,  and  the  body  of  the  self-murderer  was  buried  without 
the  sacred  rites. 

But  all  these  were  epochs  of  the  prevalence  of  a  sort  of 
insanity,  which,  like  the  insanity  of  witchcraft,  had  its  day  and 
died  out.  And  the  various  forms  of  penalties  enacted  from 
time  to  time,  in  every  case  seeking  to  attach  some  moral 
punishment  to  the  crime — which  should  survive  the  memory 
of  the  suicide— would  seem  to  show  that  the  act  was  the  act  of 
a  mental  hallucination,  not  to  be  overcome  by  the  ordinary 
methods.  In  the  time  of  Louis  IX.  of  France  the  body  of  the 
suicide  was  subjected  to  the  grossest  indignities.  It  was  taken 
from  the  house  through  an  opening  made  for  the  purpose,  was 
horribly  mutilated,  and  buried  at  night.  No  mass  was  allowed 
for  the  soul  of  the  dead  man,  but  the  charitably  disposed 
were  kindly  permitted  to  pray  for  its  repose,  if  they  felt 
inclined. 

The  Roman  Catholics,  the  Greeks,  and  Protestant  Episco- 
pal churches  prohibit  the  reading  of  the  burial  service  over 
the  body  of  the  suicide,  except  in  the  case  of  one  who  died 
while  insane.  The  statute  law  of  England  prohibits  it  in  all 
cases.  At  the  time  of  the  Reformation  in  England,  the  sui- 
cide's property  was  confiscated  to  compensate  the  State  for 
the  loss  of  a  subject,  his  body  was  buried  at  the  cross-roads 
and  a  stake  was  driven  through  it,  to  mark  the  detestation  o* 


PRESUMPTIVE    EVIDENCE.  735 

(z  )  another  instance  of  which  has  been  already  given. 
(/£)  But  the  foregoing  applications  of  it,  especially 
the  second,  have  been  attacked  by  some  modern  wri- 

(*)  Gro.  Car.  317.  (k)  Supra,   sect.    2,    sub-sect.    8,    § 

413- 

the  law,  and  to  deter  others  from  the  crime.  This  very- 
ancient  rule  fell  into  general,  if  not  entire  disuse  many  years 
ago,  but  it  was  not  repealed  until  the  fourth  year  of  George 
IV. 's  reign,  and  even  then,  to  manifest  the  horror  of  the  law 
at  the  act  of  suicide,  it  was  ordered  that  the  body,  which 
might  be  placed  in  a  churchyard,  or  other  consecrated  ground, 
should  be  buried  at  night,  and  without  the  performance  of 
religious  rites. 

Mahomet  in  the  Koran  forbids  suicide  expressly  and  with 
peculiar  unction.  The  Canon  Law  enacted  that  suicide  or 
attempted  suicide  were  infamous,  and,  so  far  as  possible,  to 
be  punished,  upon  the  grounds  of  public  policy  as  well  as  of 
morality.  "  For  there  could  be  no  patient  endurance  in  the 
state  if  there  were  no  patient  endurance  in  the  citizen.  If  the 
people  should  resort  to  suicide  to  escape  trouble,  so  would 
the  state,  and  all  social  order  would  be  at  an  end."  The  prin- 
ciple was  adopted  by  the  Germanic  Law,  and  accepted  by  the 
ecclesiastical  courts  of  England,  while  it  is  undoubtedly  part 
of  the  common  law  of  the  United  States,  so  much  of  the 
ecclesiastical  law  of  England  as  consisted  of  ethical  prin- 
ciple, having  been  incorporated  into  the  common  law  of 
the  United  States.  Wharton  on  Homicide,  §  315,  note.  In 
Lord  Macaulay's  report  on  the  Indian  Code,  he  says : 

"  Our  reasons  for  not  punishing  it  (aiding  another  to  com- 
mit suicide)  so  severely  as  murder,  are  these  :  In  the  first  place, 
the  motives  which  prompt  men  to  the  commission  of  this 
offense  are  generally  far  more  respectable  than  those  which 
prompt  men  to  the  commission  of  murder.  Sometimes  it  is 
the  effect  of  a  strong  sense  of  religious  duty,  sometimes  of  a 
strong  sense  of  honor,  not  unfrequently  of  humanity.  The 
soldier  who,  at  the  entreaty  of  a  wounded  comrade,  puts  the 
comrade  out  of  pain  ;  the  friend  who  supplies  laudanum  to  a 
person  suffering  the  torment  of  a  lingering  disease ;  the 
freedman  who,  in  ancient  times,  held  out  the  sword  that  his 
master  might  fall  on  it;  the  high-born  native  of  India  who 
stabs  the  females  of  the  family  at  their  own  entreaty,  in  order 
to  save  them  from  the  licentiousness  of  a  band  of  marauders, 
would   except  in  Christian  societies,  scarcely  be  thought  cul- 


736     SECONDARY    RULES    OF    EVIDENCE. 

tcrs  as  being  repugnant  to  natural  justice  and  human« 
ity  ;  (/)  as  well  as  to  the  passages  of  the  Roman  law, 
"  In    malcficiis   voluntas  spectatur,   non   exitus,"  (m) 

(/)  Benth.    Jud.    Ev.    bk.    5,   ch.  4;      Jurisprudence,  43. 
Phillimore,  Principles  and  Maxims  of  (m)  Dig.  lib.  48,  tit.  8.  1.  14. 

pable,  and  even  in  Christian  societies  would  not  be  regarded 
by  the  public,  and  ought  not  to  be  treated  by  the  law,  as 
assassins. 

"Again,  this  crime  is  by  no  means  productive  of  so  much 
evil  to  the  community  as  murder.  One  evil  ingredient,  of  the 
utmost  importance,  is  altogether  wanting  to  the  offense  of 
voluntary  culpable  homicide  by  consent.  It  does  not  produce 
general  insecurity.  It  does  not  spread  terror  through  society. 
When  we  punish  murder  with  such  signal  severity,  we  have 
two  ends  in  view.  One  end  is,  that  people  may  not  be 
murdered.  Another  end  is,  that  people  may  not  live  in 
constant  dread  of  being  murdered.  This  second  end  is 
perhaps  the  more  important  of  the  two.  For  if  assassina- 
tion were  left  unpunished,  the  number  of  persons  assas- 
sinated would  probably  bear  a  very  small  proportion  to 
the  whole  population  ;  but  the  life  of  every  human  being 
would  be  passed  in  constant  anxiety  and  alarm.  This 
property  of  the  offense  of  murder  is  not  found  in  the  offense 
of  voluntary  culpable  homicide  by  consent.  Every  man 
who  has  not  given  his  consent  to  be  put  to  death  is  per- 
fectly certain  that  this  latter  offense  cannot  at  present  be  com- 
mitted on  him,  and  that  it  never  will  be  committed  unless  he 
shall  first  be  convinced  that  it  is  his  interest  to  consent  to  it. 
We  know  that  two  or  three  midnight  assassinations  are  suffi- 
cient to  keep  a  city  of  a  million  inhabitants  in  a  state  of  con- 
sternation during  several  weeks,  and  to  cause  every  private 
family  to  lay  in  arms  and  watchmen's  rattles.  No  number  of 
suicides,  or  of  homicides,  committed  with  the  unextorted  con- 
sent of  the  person  killed,  could  possibly  produce  such  alarm 
among  the  survivors." 

And  see  available  collection  of  references  to  laws  of  differ- 
ent countries  in  regard  to  suicide,  in  Wharton  on  Homicide, 
§  315.  In  modern  times  the  preventive  policy  of  law  is  directed 
to  any  possible  accessories  of  the  act  of  suicide,  rather  than  to 
any  moral  or  sentimental  appeal  to  the  principles  them- 
selves. "  When  self- killing  ceases  to  be  entirely  voluntary;  in 
other  words,  when  it  is  executed  under  another's  compulsion 


PRESUMPTIVE    EVIDENCE.   •  737 

"  Fraudis  interpretatio  semper  in  jure  civili,  non  ex 
eventu  duntaxat,  sed  et  consilio  quoque  desideratur." 
{n)     But  it  may  well  be  doubted  whether  these  pas- 

(n)  Dig.  lib.  50,  tit.  17,  1.  79. 

then,  at  common  law,  that  other  is  guilty  of  homicide,  though 
the  deceased  himself  struck  the  fatai  blow 

"  Under  the  Anglo-Saxon  laws,  a  person  present  at  the 
death  of  a  man  who  was  murdered  or  had  committed  suicide 
was  regarded  v&particeps  criniinis,  and  as  such  was  liable  to  a 
fine.  Every  man's  life  had  its  value,  called  a  were  or  capitis 
estimatio.  This  had  been  varied  at  different  periods  in  the 
time  of  King  Athelstan  ;  in  a.  d.  926,  a  law  was  made  to  set- 
tle the  were  of  every  order  of  persons  in  the  state.  If  the 
fines  were  not  paid,  the  punishment  was  death. 

"  In  some  countries  accessories  to  suicide  are  punishable, 
even  though  suicide  itself  is  not  a  penal  offense. 

"  Among  the  German  States,  Brunswick,  Thuringia,  Baden 
and  Saxony  alone  punish  those  who  are  accessories  to  sui- 
cide. The  penal  code  of  France  has  no  penalty  against  acces- 
sories in  such  cases.  The  penal  code  of  India  has  a  penalty 
for  the  accomplice  or  accessory. 

"  Under  the  New  York  Revised  Statutes  (2  R.  S.  661,  §  7), 
assisting  another  in  committing  self-murder  is  declared  to  be 
manslaughter  in  the  first  degree. 

"At  common  law,  if  a  man  encourages  another  to  murder 
himself,  and  he  is  present  abetting  him  while  he  does  so,  such 
man  is  guilty  of  murder  as  principal.  It  is  otherwise,  how- 
ever, at  common  law,  when  the  suicide  is  consummated  in  the 
absence  of  the  adviser.  In  such  cases,  as  the  adviser  is  only 
an  accessory  before  the  fact,  he  can  not,  according  to  the  old 
technical  rule  of  law,  be  convicted  until  after  a  conviction  of 
the  principal,  who,  being  on  this  hypothesis  dead,  is  out  of  the 
reach  of  legal  process.  This,  however,  has  been  in  many  of 
the  states  corrected  by  statute,  and  where  it  is  not,  the  advis- 
ing another  to  commit  suicide,  who  afterwards  does  so,  is 
indictable  at  common  law  as  a  misdemeanor"  (and  see  Com- 
monwealth v.  Bowen,  13  Mass.  359;  Green  v.  State,  13  Mo. 
382). 

And  so  a  person  using  his  power  over  another  to 
induce  him  to  commit  suicide  is  responsible  as  for  homicide, 
on  the  ground,  that  to  force  one  to  swallow  poison  by 
threats  of  violence,  is  an  administering  of  poison.  Black- 
burn   v.    State,    23    Ohio    St.    146.       Wharton    on    Homicide, 

47 


733      SECONDARY    RULES    OF    EVIDENCE. 

sages,  standing  as  they  do  in  the  Digest  without  con- 
text, mean  to  express  more  than  the  unquestionable 
principle,  that  there  can  be  no  crime  where  there  is  no 

§  515,  et  seq.  Since  the  consent  of  the  deceased  is  no 
defense  to  an  indictment  for  murder,  as  no  one  can  by 
consent  validate  the  taking  of  his  own  life.  Says  Whar- 
ton (on  Homicide,  §  320)  :  "Suppose  A.  is  assailed  by  a  fata, 
disease  for  which  the  only  escape  is  a  dangerous  surgical 
operation;  and  that  this  operation  is  skillfully  performed 
by  B.  at  A.'s  request,  but  that  A.  dies  under  the  knife? 
On  this  point,  Lord  Macaulay,  in  his  report  on  the  India 
Penal  Code,  says:  'It  is  often  the  wisest  thing  a  man  can  do 
to  expose  his  life  to  great  hazard.  It  is  often  the  greatest 
service  that  can  be  rendered  to  him  to  do  what  may  very  prob- 
ably cause  his  death.  He  may  labor  under  a  cruel  and  wast- 
ing malady  which  is  certain  to  shorten  his  life,  and  which 
renders  his  life,  while  it  lasts,  useless  to  others  and  a  torment 
to  himself.  Suppose  that  under  these  circumstances  he,  unde- 
ceived, gives  his  free  ?nd  intelligent  consent  to  take  the  risk  of 
an  operation  which  in  a  large  proportion  of  cases  has  proved 
fatal,  but  which  is  the  only  method  by  which  his  disease  can 
possibly  be  cured,  and  which,  if  it  succeeds,  will  restore  him 
to  health  and  vigor.  We  do  not  conceive  that  it  would  be 
expedient  to  punish  the  surgeon  who  should  perform  the 
operation,  though  by  performing  it  he  might  cause  death,  not 
intending  to  cause  death,  but  knowing  himself  likely  to  cause 
it.  Again,  if  a  person  attacked  by  a  wild  beast  should  call 
out  to  his  friends  to  fire,  though  with  imminent  hazard  to  him- 
self, and  they  were  to  obey  the  call,  we  do  not  conceive  that  it 
would  be  expedient  to  punish  them,  though  they. might  by  fir- 
ing cause  his  death,  and  though  when  they  fired  they  knew 
themselves  to  be  likely  to  cause  his  death.'  The  same  rule 
applies,  as  has  been  argued  by  Bar,  an  able  German  jurist,  in 
cases  where  consent,  on  account  of  mental  incapacity,  can  not 
be  given.  Suppose  a  dangerous  operation  is  required  as  the 
last  hope  of  resusciating  an  unconscious  person.  If  the  oper- 
ation is  performed  with  the  skill  usual  to  surgeons  under 
such  circumstances,  this  is  a  good  defense  if  death  ensue." 

But  it  we  should  accept  the  theory  that  self-destruction  is  in 
every  case  the  result  of  unhealthy  mental  condition,  of  course 
it  could  not  be  a  crime  at  all,  at  least  in  the  legal  sense  which 
attaches  a  penalty  to  crimes.  This  is  the  view  we  under- 
stand Dr.  Henry  Maudsley   to  take   of  the  matter,'though  we 


PRESUMPTIVE    EVIDENCE.  739 

criminal  intention  ;  or,  as  our  own  law  has  it,  "  Actus 
non  facit  reum  nisi  mens  sit  rea."  (0)1  And,  so  far 
from  being  at  variance  with  natural  justice  or  human- 

(0)  Bk.  1,  pt.  i,  §  96. 

are  aware  that  that  learned  gentleman  is  charged  with  going 
to  the  extent  of  holding  that  no  living  person  is  actually 
sane,  a  doctrine  which  would  destroy  iitterly  any  ideas  ol 
human  responsibility  for  crime.  Says  Dr.  Maudsley,  "  It  is, 
indeed,  from  the  gloomy  depths  of  a  mind  in  this  melancholic 
state  that  desperate  impulses  to  suicide  or  homicide  often 
spring;  and  it  is  by  persons  in  this  state  of  mental  suffering 
that  many  of  the  suicides  and  some  of  the  homicides  which 
are  recorded  almost  daily  in  the  newspapers,  are  done."  Am. 
Ed.  p.  123. 

"  I  do  not  forget  that  the  lawyers  have  declared  delusion 
to  be  the  test  of  insanity,  but  that  is  a  doctrine  which,  in  com- 
mon with  other  physicians  who  know  anything  of  insanity. 
I  do  not  hesitate  to  pronounce  erroneous  "  (Id.  p.  133).  "The 
most  anxious  cases  with  which  those  have  to  do  who  are 
engaged  in  the  care  and  treatment  of  the  insane,  are  unques- 
tionably those  in  which  there  is  persistent  suicidal  impulse, 
it  may  be  without  appreciable  disorder  of  the  intellect.'  The 
patient  is  quite  aware  of  his  morbid  state,  deplores  it,  strug- 
gles against  the  horrible  temptation,  but,  in  the  end,  unless 
very  closely  watched,  is  hurried  into  suicide  by  it.  Of  course 
such  a  person  is  depressed  because  of  his  state,  feels  no  inter- 
est in  his  usual  pursuits,  and  can  not  follow  them  ;  everything 
is  swallowed  up  in  the  absorbing  misery  of  his  temptation  ; 
but  he  is  under  no  delusion  ;  his  intellect  is  clear  ;  he  can 
reason  about  his  condition  as  well  as  any  one  else  can;  his 
knowledge  of  right  and  wrong,  in  regard  to  the  act,  is  most 
keen.  Nevertheless,  his  intellect  is,  at  times,  so  completely 
the  slave  of  his  morbid  impulse,  that  it  is  constrained  to  watch 
for  opportunities,  and  to  devise  means  to  carry  it  into  effect. 
No  one  who  has  not  seen  it  could  believe  what  ingenuity 
there  may  be  in  planning,  and  what  determination  in  execut- 
ing a  deed  which,  all  the  while,  is  reprobated  as  most  wicked. 
Many  examples  of  this  form  of  derangement  might  be  quoted 
from  writers  on  insanity.  I  shall  content  myself  with  men- 
tioning two  instances  which    came  under   my  own   observa- 

1  An  act  does  not  make   the  doer  of  it  guilty,  unless  the 
mind  be  guilty — i.  e.,  unless  the  intent  be  criminal. 


74Q      SECONDARY    RULES     OF    EVIDENCE. 

ity,  the  maxim  in  question  seems  to  be  a  principle  of 
general  jurisprudence,  and  is  founded  in  true  morality 
and  policy.     The  principle  is  recognized  in  the  laws  of 

tion.  A  married  lady,  thirty-one  years  of  age — sprung  from  a 
family  in  which  there  was  much  insanity — was,  a  few  weeks 
after  her  confinement,  seized  with  a  strong  and  persistent 
suicidal  impulse,  without  delusion  or  disorder  of  the  intellect. 
\fter  some  weeks  of  zealous  attention  and  anxious  care  from 
her  relatives,  who  were  all  most  unwilling  to  send  her  from 
home,  it  was  found  absolutely  necessary  to  send  her  to  an 
asylum ;  so  frequent,  so  cunningly  devised,  so  determined 
were  her  suicidal  attempts.  On  admission,  she  was  very 
wretched  because  of  the  frightful  impulse  with  which  she  was 
possessed,  and  often  wept  bitterly,  deploring  the  great  grief 
and  trouble  which  she  caused  to  her  friends.  She  was  quite 
rational,  even  in  her  horror  and  reprobation  of  the  morbid 
propensity  ;  all  the  fault  that  could  be  found  with  her  intel- 
lect was,  that  it  was  enlisted  in  its  service.  Nevertheless,  her 
attempts  at  suicide  were  unceasing.  At  times  she  would  seem 
quite  cheerful,  so  as  to  throw  her  attendants  off  their  guard, 
and  then  would  make,  with  quick  and  sudden  energy,  a  pre- 
contrived  attempt.  On  one  occasion  she  secretly  tore  her 
night  dress  into  strips  while  in  bed,  and  was  detected  in  the 
attempt  to  strangle  herself  with  them.  For  some  time  she 
endeavored  to  starve  herself  to  death  by  refusing  all  food, 
and  it  was  necessary  to  feed  her  with  the  stomach-pump.  The 
anxiety  which  she  caused  was  almost  intolerable,  but  no  one 
could  grieve  more  over  her  miserable  state  than  she  did  her- 
self. After  she  had  been  in  the  asylum  for  four  months, 
there  appeared  to  be  a  slow  and  steady  improvement,  and  it 
was  generally  thought,  as  it  was  devoutly  hoped,  that  she 
would  make  no  more  attempts  at  self-destruction.  Watchful- 
ness was  somewhat  relaxed,  when,  one  night,  she  suddenly 
escaped  out  of  a  door  which  had  carelessly  been  left  unlocked, 
climbed  over  a  high  wall  with  surprising  agility,  and  ran  off 
to  a  reservoir  of  water,  into  which  she  threw  herself  head- 
long. She  was  rescued  before  life  was  quite  extinct ;  and 
after  this  all  but  successful  attempt  she  never  made  another, 
but  gradually  regained  her  cheerfulness  and  love  of  life,  and 
finally  left  the  establishment  in  her  right  mind.  In  face  of 
this  example  of  uncontrollable  morbid  impulse,  with  clear  in- 
tellect and  keen  moral  sense,  what  becomes  of  the  legal  crite- 
rion of  responsibility?      A  gentleman  of  middle  age  and  ol 


PRES  UMPT1 VE    E  VIDENCE.  741 

France  (/)  and  Louisiana,  (^)  and,  it  is  said,  of  China 
also ;  (V)  and,  in  some  cases  at  least,  by  the  Roman 
law ;  (s)  while  the  maxim  in   terms  is  found  in  the 

{p)  The  following  exposition  of  the  able  association.     Ce  fait  est  parfaite- 

French  law  on  this  subject  may  not  be  ment  imputable;  la  loi,  en  le  frappant, 

deemed  misplaced:     "  Souvent  la  loi  ne    fait   qu'aggraver  la    pe'nalite  d'un 

penale  conclut  a  priori,  de  l'existence  acte  deja  reprehensible   en   lui-meme. 

de  certains   faits  qui  rendent   le   delit  C'est  la  de   la  riguer  peut-etre  ;  mais 

vraisemblable,  a  l'existence  meme   du  ce    n'est  pas   de  l'iniquite.     On   peut 

delit.     Mais   la  legitimite  d'une  pre-  justifier  de  meme  la  disposition  de  la 

somption  aussi  grave  est  sobordonnee  loi  du  21  Brumaire,  an  v.  (tit.  III.  art. 

a  deux  conditions  :   i°,  que  le  fait  con-  2),    qui   repute  coupable    de   trahison 

state  emporte  certitude  morale  du  fait  tout    militaire    qui,    en    presence    de 

incrimine  par  la  loi  ;  2°,   que  le  fait  l'ennemi,    aura    pousse   des   clameurs 

constate     soit     lui-meme     imputable.  tendant  a  jeter  l'e'pouvante  et  le  de- 

Ces  deux  conditions  se  trouventreunies  sordre    dans  les   rangs.     La   vraisem- 

dans  le  cas  prevu  par  l'article  61   du  blance    d'une    intelligence    criminelle 

Code   penal,  qui   punit,   comme  com-  avec  l'ennemi,  Justine  l'application  de 

plices    des   malfaiteurs    exercant    des  la  peine  capitale  a  un  fait  qui,  par  lui- 

violences    contre    la    paix    publique,  meme,  est  deja  d'une  extreme  gravite:" 

ceux    qui,   connaissant    leur   conduite  Bonnier,  Traite  des  Preuves,  §  674, 
criminelle,  leur  fournis^ent  habituelle-  (q)  Crim.  Code  of  Louisiana,  §  41. 

ment  une  retraite.     Le  fait  de    loger  (r)  Benth.  Jud.  Ev.  bk.  5,  ch.  4. 

habituellement    les    malfaiteurs,    rend  (s)  See   Dig.  lib.  47,  tit.    10,  1.    iS,  § 

eminemment  vraisemblable  une  coup-  3. 

ample  means,  happily  married,  but  sprung1  from  a  family  in 
which  other  members  had  been  insane,  and  who  before  mar- 
riage had  led  a  dissipated  life  and  was  now  suffering  from 
the  enervating  effects  of  his  excesses,  became  the  victim  of 
desperate  suicidal  insanity.  He  had  once  before  had  a  similar 
attack,  from  which  he  had  recovered  in  a  few  months.  On 
this  occasion  he  was  terribly  distressed  and  depressed  by 
reason  of  the  impulse  to  destroy  himself — there  was  no  other 
cause  of  the  depression — but,  at  the  same  time,  he  declared 
calmly  that  he  must  do  it,  and  that  he  should  have  done  it 
before  this  if  he  had  not  been  a  coward.  To  all  attempts  to 
comfort  him  by  the  assurance  that  it  would  pass  away  as  it 
had  done  on  a  former  occasion,  he  smiled  incredulously,  re- 
peating the  declaration  that  he  must  do  it.  He  had  been 
recommended  to  travel  for  change  of  scene,  but  as  he  had 
attempted  to  throw  himself  overboard  while  at  sea,  he  was 
brought  back  home  and  placed  under  special  care.  He  con- 
tinued, however,  in  the  same  hopeless  and  despairing  state  of 
mind,  protesting  calmly  that  he  must  do  it,  that  he  was  dis- 
graced and  dared  not  look  people  in  the  face   because  of  his 


742      SECONDARY    RULES    OF    EVIDENCE. 

canon  law,  (/)  and  is  thus  ably  explained  by  one  oi 
the  commentators  upon  it :  '"  Semel  malus,  sempei 
praesumitur  malus.'     Regula  videtur  contraria  chad- 

(/)  Sext.  Decretal,  lib.   5,  tit.   12,  de  Reg.  Jur.  Reg.  8. 

cowardice  in  not  doing  it,  and  all  this  so  quietly  that  it  was 
hardly  possible  to  think  that  he  really  meant  what  he  said. 
Nevertheless,  one  morning  he  eluded  the  vigilance  of  his 
attendant,  ran  off  as  fast  as  he  could  across  hedges  and 
ditches,  closely  but  vainly  pursued,  to  a  railway,  clambered  up 
a  high  embarkment,  and  deliberately  laid  himself  down  across 
the  rails,  in  front  of  a  passing  train,  which  killed  him  on  the 
spot.  Except  that  this  unfortunate  gentleman  had  the  insane 
suicidal  impulse,  and  thought  himself  a  disgraced  man,  who 
could  never  again  hold  up  his  head  because  of  his  cowardice, 
he  was,  id  all  respects,  apparently  sane."     Id.  pp.  133,  137. 

The  insurance  company  has  of  course  the  opportunity, 
before  insuring,  of  examining  for  traces  of  peculiar  or  heredi- 
tary mental  disease,  as  well  as  for  physical  disabilities,  and 
death  by  "  involuntary  suicide  "  is  nothing  but  death  from  the 
consequences  of  mental  disease. 

We  have  expressed  a  doubt  as  to  whether  Samson's  im- 
molation (narrated  in  Judges  xvi.  29)  was  suicide.  If  it  were, 
then,  perhaps,  his  self-destruction,  and  that  of  Thomas  Chatter- 
ton  are  the  two  most  nearly  perfect  examples  of  calculating 
and  deliberate  suicide.  Chatterton,  as  we  find  in  his  poems, 
was  no  stranger  to  the  possible  finale  of  suicide  in  his  own 
case.     We  find  him  writing  in  1769: 

"  Since  we  can  die  hut  once,  what  matters  it 
If  rope  or  garter,  pistol,  poison,  sword, 
Slow-wasting  sickness,  or  the  sudden  burst 
Of  valve  arterial  in  the  noble  parts, 
Curtail  the  miseries  of  human  life,"  etc. 

While  he  concludes  his  "  last  verses,"  which  he  wrote  and 
dated  on  the  day  of  his  death,  Friday,  August  24th,  1770,  and 
inserted  in  his  pocketbook  : 

"  Have  mercy,  Heaven,  when  here  I  cease  to  live, 
And  this  last  act  of  wretchedness  forgive," — 

after  which  he  tears  up  his  manuscript,  stretches  himself  upon 
his  couch  and  takes  the  arsenic  and  water  which  works  his 
death.  Previously  to  this,  "  between  1 1  and  2  oclock,  Satur- 
day in  the  utmost  distress  of  mind,"  April  14,  1770,  before  he 
>-r\    efi  Bristol,  he  had  contemplated  suicide,  and  left  "  direc- 


PRESUMPTIVE    EVIDENCE.  743 

tati,  quae  non  cogitet  malum ;  sed  non  est.  Non 
enim  charitatis  est  malum  non  cogitare  in  omni  casu, 
sed   tantum,  cum  nullum   sebest  fundamentum,  quale 

tions  to  be  observed  after  my  death,  which  will  happen  to-mor- 
row night  before  8  o'clock,  being  the  Feast  of  Resurrection." 
It  is  proper  to  add,  however,  that  Southey  differed  from  the 
opinion  we  have  expressed  above,  saying  :  "  Chatterton  was 
insane — better  proof  of  this  than  the  coroner's  inquest,  is  that 
there  was  insanity  in  his  family  (his  sister,  Mrs.  Newton,  was 
for  some  period  confined  in  a  mad-house).  His  biographers 
were  not  informed  of  this  important  fact,  and  the  editors  of 
his  collected  works  forbore  to  state  it,  because  the  collection 
was  made  for  the  benefit  of  his  surviving  relations,  a  sister  and 
a  niece,  in  both  of  whom  the  disease  had  manifested  itself."  A 
most  peculiar  case  of  self-destruction,  traced  to  love  melan- 
choly, but  otherwise  bearing  a  striking  resemblance  to  Chat- 
terton's,  occured  very  recently  in  a  small  town  in  Massachu- 
setts, where  two  young  girls  resolved  to  die  together,  wrote 
several  letters  to  friends,  dressed  themselves  for  burial,  laid 
themselves  side  by  side  upon  a  bed,  and  took  poison, — one  of 
them  actually  dying  in  that  position. 

In  regard  to  the  moral  aspects  of  self-destruction,  it  may 
be  said  that  the  most  ingenious  arguments  have  been  urged  in 
favor  of  the  act.  It  has  been  said  that  death  is  merely  a  rem- 
edy for  unbearable  evils,  and  that,  consequently,  it  is  no  more 
wrong  to  take  one's  self  out  of  the  world,  than  to  call  in  a 
physician  or  to  take  drugs  when  in  physical  suffering;  to 
which  Pythagoras  answers  by  comparing  a  human  being  to  a 
sentinel,  at  a  post  which  he  can  not  desert,  whatever  trials  he 
may  be  called  upon  to  endure;  that  life  was  not  given  by  the 
Creator  to  mortals  as  the  result  of  a  contract  that  they  on  their 
part  would  accept  it  and  its  responsibilities  and  consequences, 
or  at  their  request,  and  that  they  are  not  bound  to  accept  it, 
the  answer  to  which  is  given  by  Coleridge  in  his  lines  "  Thr 
Suicide's  Argument  "  : 

''  Ere  the  birth  of  my  life,  if  I  wished  it  or  no, 
No  question  was  asked  me — it  could  not  be  so  ? 
If  the  life  was  the  question,  a  thing  sent  to  try 
And  to  live  on  be  YES  ;  what  can  NO  be  ?  to  die." 

nature's   answer. 

"  Is't  returned  as  t'was  sent.     Is't  no  worse  for  the  wear  t 
Think  first  what  you  are,  call  to  mind  what  you  were  ! 


;44      SECONDARY    RULES     OE    EVIDENCE. 

subest  in  casu  regulse ;  prseterea  non  prsesumitur  hie 
malus  in  omni  mali  genere,  sed  in  eo  tantum,  in  quo 
malus    inventus    est,  idque    solum,  ut    impediatur   ne 

I  gave  you  innocence,  I  gave  you  hope, 
Gave  health  and  genius,  and  an  ample  scope. 
Return  you  me  guilt,  lethargy,  despair  ; 
Make  out  the  inven'try,  inspect,  compare, 
Then  die — if  die  you  dare." 

And  innumerable  writers  have  urged,  on  the  one  hand,  that 
suicide  was  moral  courage,  and  on  the  other,  that  it  was  phy- 
sical cowardice;  the  truth  lying,  probably,  somewhere  between 
the  two  (perhaps  that  the  act  of  suicide  is  one  combining 
physical  courage  with  moral  cowardice).  But,  besides  the 
suicide  of  the  boy  Chatterton  in  the  London  garret,  in  1770, 
instances,  since  the  Christian  era,  will  probably  be  very 
rarely  found  in  which  the  fluent  in  arguments  in  favor  of  self- 
destruction  as  a  panacea  for  trouble,  have  taken  their  own 
remedy. 

The  result  of  the  inquiry — which,  it  is  needless  to  say,  must 
be  pursued  independently  in  each  case — is  of  the  utmost  impor- 
tance in  cases  of  life  insurance,  under  policies  which  bar  sui- 
cide. We  have  not  attempted,  in  this  note,  to  do  more  than  sug- 
gest the  lines  of  argument  which  present  themselves  in  reference 
to  what  must  continue  to  be  the  most,  marvellous  of  mental  phe- 
nomena. Valuable  communications  and  essays  upon  the  sub- 
ject, examining  the  authorities  up  to  the  time  they  were  writ- 
ten, may  be  found  in  the  Albany  Law  Journal,  i.  p.  93  ;  v.  p. 
53;  Papers  of  the  Medico-Legal  Society  of  New  York,  i.  p. 
1  ;  Am.  Law  Register,  vol.  x.  p.  673. 

As  throwing  a  grotesque  light  upon  another  phase  of  the 
question  of  suicide  as  distinguishable  from  self-destruction, 
we  quote  the  following  : 

"  Nothing  will  persuade  the  lawyer  that  he  does  not  posses 
in  his  library  the  original  of  Shakespeare's  inimitable  grave- 
digger's  argument  about  '  crowner's  quest  law  '  in  'Hamlet* 
— the  famous  case  of  Hales  v.  Pettit,  reported  in  old  Plowden, 
a.  D.  1550.  Sir  James  Hales,  a  justice  of  the  common  pleas, 
committed  suicide  by  throwing  himself  into  a  watercourse. 
The  coroner  sat  upon  his  body,  and — this  being  before  the  days 
0!  'moral  insanity' — presented  that,  'passing  through  ways 
and  streets  of  the  said  city  of  Canterbury,  he,  the  said  James 
Hales,  did  voluntarily  enter  the  same,  and  did  himself  therein, 
voluntarily  and  feloniously,  drown.'     Suicide  being  a  felony, 


PRESUMPTIVE    EVIDENCE.  745 

simile  malum  perpetret ;  unde  hsec  prsesumptio  non 
obest,  sed  potiu^  prodest  ei  in  quern  cadit ;  uno  verbo 
praesumpio  de  qua  regula,  non  est  maligna,  sed  cauta, 
utpote  non   nata  ex  prava  male  judicandi  consuetu- 

this  felony  worked  a  forfeiture  of  his  estates.  But,  in  answer 
to  this,  his  successors  pleaded  that  Sir  James  did  not  commit 
suicide  ;  he  only  threw  himself  into  the  water,  and  suicide  im- 
ply ng  death,  as  he  did  not  die  during  his  life,  he  committed 
no  suicide.  The  question  was  then,  Did  Sir  James  commit 
suicide  during  his  life  ?  For,  if  he  only  threw  himself  into 
the  water  in  his  lifetime,  throwing  himself  into  the  water  is  no 
felony,  and  the  suicide  not  being  complete  until  his  death — it 
being  impossible  for  him  to  have  died  during  his  life — ergo, 
he  committed  no  felony.  This  perplexing  proposition  was 
argued  by  six  sergeants-at-law,  and  their  wearying  dialectics, 
here  recorded  in  solemn  black-letter,  are  fully  as  mirth-pro- 
voking as  in  Shakespeare's  travesty.  The  question  arose  in 
the  course  of  a  suit  for  trespass  brought  by  Lady  Hales,  claim- 
ing, as  survivor  in  joint-tenancy  of  her  husbaud,  against  one 
Pettit,  attempting  to  enter  by  virtue  of  a  crown-grant  of  the 
forfeited  estates.  The  lawyers  worked  themselves  into  a  hope- 
less desperation,  which  it  was  left  for  William  Shakespeare  to 
disentangle  for  the  public  verdict. 

"  '  1st  Clown.  It  must  be  se  offendendo  ;  it  can  not  be  else, 
for  here  lies  the  point :  if  I  drown  myself  wittingly,  it  argues 
an  act,  and  an  act  has  three  branches — it  is  to  act,  to  do,  and 
to  perform  :  argal,  she  drowned  herself  wittingly.' 

"'  2nd  Clown.  Nay,  but  hear  you,  goodman  delver.' 
"'1st  Clown.  Give  me  leave.  Here  lies  the  water ;  good. 
Here  stands  the  man  ;  good.  If  the  man  go  to  this  water, 
and  drown  himself,  it  is,  will  he,  nil  he,  he  goes;  mark  you 
that  :  but  if  the  water  come  to  him,  and  drown  him,  he  drowns 
not  himself:  argal,  he  that  is  not  guilty  of  his  own  death, 
shortens  not  his  own  life.' 

"  '  2nd  Clown.  But  is  this  law  ?  ' 

"'  1st  Clown.  Ay,  marry  is't:  crowner's  quest  law.' 
"  That  which  purges  of  the  felony  in  Hales  v.  Pettit  entitles 
to  Christian  burial  in  re  Ophelia  (reported  in  '  Hamlet,'  vol. 
1),  and  in  either,  if  the  water  did  the  deed,  the  human  being 
was  unaccountable "  (Morgan's  Law  of  Literature,  note  to 
page  522,  vol.  2. 


746     SECONDARY    RULES    OF    EVIDENCE. 

dine,  aliove  vitio,  sed  ex  justo  metu."  (ti)  No  con- 
siderations of  policy  can  justify  the  condemnation  of 
a  man  who  is  either  innocent,  or  of  whose  guilt  any 
reasonable  doubt  exists  ;  but  it  is  very  different  where 
there  is  a  proved  basis  of  guilty  intention  to  work  on. 
There  a  man  is  rightly  held  accountable  for  the  natural 
consequences  of  his  misconduct,  though  he  may  not 
have  intended  them  ;  and  perilous  indeed  would  it 
be  to  the  community  were  this  otherwise.  The  enor- 
mity of  an  offense  is  made  up,  not  only  of  the  actual 
amount  of  mischief  done  by  the  criminal,  but  of  the 
tendency  of  his  conduct  to  encourage  others  to  break 
the  law  ;  and  in  measuring  this  latter,  regard  must  be 
had  to  the  notorious  difficulty  of  proving  psycholo- 
gical facts.  Look  at  the  cases  already  put.  (v)  A 
man,  without  justification,  assaults  another  with  the 
intention  of  giving  him  only  a  slight  beating  ;  death 
ensues  ;  ought  a  judicial  tribunal  to  permit  him  to 
contend  that  he  was  not  responsible  for  homicide  ? 
So,  if  several  persons  go  out  with  the  intention  of 
committing  a  felony,  surely  the  law  is  perfectly  justi- 
fied in  holding  each  responsible  for  all  acts  done  by 
his  companions  in  furtherance  of  the  general  design. 
For  not  only  was  the  person  who  did  the  act  encour- 
aged in,  if  not  instigated  to  his  guilt,  by  the  presence 
of  the  rest ;  but  when  several  persons  are  involved  in 
such  a  transaction,  it  is  often  extremely  difficult 
to  apportion  to  each  his  precise  share  of  guilty  inten- 
tion ;  and,  if  the  onus  of  doing  this  with  accuracy 
were  cast  upon  the  law,  the  most  wicked  and  cun- 
ning criminals  would  frequently  escape  their  just 
punishment. 

(«)  Gibert.   Corp.  Jur.  Can.  Proleg.  (p)  §  435. 

Pars  Post.  tit.  7,  cap.  2,  §  2,  n.  30. 


PRESUMPTIVE    EVIDENCE.  747 

437.  Many  artificial  presumptions  have,  from 
time  to  time,  been  introduced  by  statute  into  our 
criminal  code.  An  instance  is  presented  in  the  well- 
known  statute  21  Jac.  1,  c.  27,  (w)  by  which  it  was 
enacted  that  any  woman  delivered  of  a  bastard  child, 
who  should  endeavor  to  conceal  its  birth,  should  be 
deemed  to  have  murdered  it,  unless  she  proved  it  to 
have  been  born  dead,  (x)  So,  the  24  &  25  Vict.  c. 
98,  s.  13,  renders  it  felony  for  any  person  to  purchase, 
receive,  or  have  in  his  custody  or  possession,  without 
lawful  excuse, — the  proof  whereof  shall  lie  on  the 
party  accused, — any  forged  bank  note,  or  other  forged 
document  of  the  nature  therein  specified,  knowing  the 
same  to  be  forged.  So,  by  the  33  &  34  Vict.  c.  58,  s. 
5,  it  is  felony  for  any  person,  without  lawful  authority 
or  excuse, — the  proof  whereof  shall  lie  on  the  party 
accused, — to  engrave  or  make  any  stock  certificate  or 
coupon,  or  to  do  certain  other  acts  therein  specified. 
And  by  "  The  Foreign  Enlistment  Act,  1870,"  (jj-)  any 
ship,  built  by  order  or  on  behalf  of  any  foreign  state 
when  at  war  with  a  friendly  state,  or  delivered  to,  or 
to  the  order  of  such  foreign  state  or  of  any  person, 
who,  to  the  knowledge  of  the  person  building,  is  an 
agent  of  such  foreign  state,  or  which  is  paid  for  by 
such  foreign  state  or  such  agent,  and  is  employed  in 
the  military  or  naval  service  of  such  foreign  state, 
shall,  until  the  contrary  is  proved,  be  deemed  to  have 
been  built  with  a  view  to  being  so  employed  ;  and 
the  onus  of  proving  that  he  did  not  know  that  the 
ship  was  intended  to  be  so  employed,  is  cast  on  the 
builder. 

438.   Some   presumptions  of  the  criminal   law  are 
for  the  protection  of  accused  persons.     Thus,  an  infant 

(w)  See  Introd.  pt.  2,  §  46.  was  removed  by  43  Geo.  3,  c.  58,  s.  3. 

(x)  This  reproach  to  our  legislation  (y)  33  &  34  Vict.  c.  90,  s.  q. 


748      SECONDARY    RULES     OF    EVIDENCE. 

under  seven  years  of  age  is  conclusively  presumed  in- 
capable of  committing  felony ;  (z)  between  the  ages 
of  seven  and  fourteen  the  presumption  exists,  but  may 
be  rebutted  by  evidence ;  (a)  and  a  boy  under  four- 
teen, is  conclusively  presumed  incapable  of  commit- 
ting a  rape  as  principal  in  the  first  degree,  (b)  ' 

(z)  4  Blackst.  Com.  23  ;    I   Hale,  P.  (a)  4  Blackst.  Com.  23  ;    1  Hale,  P 

C.  27-8.  C.  26-7. 

(b)  Id.  212  ;   and  1  Hale,  P.  C  630. 

1  Wharton  &  Stiles  Medical  Jurisprudence,  vol.  2,  §  212,  et 
seq. 


PRESUMPTIVE    EVIDENCE.  749 


SUB-SECTION    II. 

PRESUMPTIVE     PROOF    IN     CRIMINAL   CASES    GENERALLY 

PARAGRAPH 

Kules  regulating  the  admissibility  of  evidence  the  same  in  civil  and 

criminal  proceedings 439 

Necessity  for    resorting   to  presumptive   proof    more    frequent  in  the 

latter 439 

Rules  of  proof  in  criminal  cases 44° 

i°.  Applicable  in  all  cases  ....          ....  44° 

2°.  When  the  proof  is  presumptive          .         .                  .         .         .  441 

I.  There    must    be    clear     and    unequivocal    proof    of    the 

corpus  delicti 44* 

1.  Delicta  facti  transeuntis 441 

2.  Delicta  facti  permanentis           .....  442 

Proof  of  facts  forming  basis  of  corpus  delicti  .  .  442 
Principles  on  which  this  rule  is  founded  .  443 
Sound  policy  of  .....  444 
Proof  of  murder  by  eye-witnesses  .  .  445 
Whether  in  extreme  cases,  basis  of  corpus 
delicti  provable  by  presumptive  evi- 
dence   . 446 

Presumptive  evidence  receivable  to  complete  preof 

of  corpus  delicti           ......  447 

Death    from  violence 447 

Accidental     destruction    or    creation    of 

indicia         ......  447 

Death    from    poison 448 

Physical    evidences    of  .                   .         .  448 

Moral    evidences  of          ....  448 

Chemical   tests   of          ....  448-9 

3.  Presumptive  evidence   always  admissible   to   disprove 

corpus  delicti       .......  450 

II.  The   hypothesis    of    delinquency    should    be    consistent 

with  all   the   facts    proved      .                   ....  451 

439.  The  rules  regulating  the  admissibility  of  evi- 
dence are,  in  general,  the  same  in  civil  as  in  criminal 
proceedings ;  (c)  and  although  presumptive  evidence 
is  receivable  to  prove  almost  any   fact,  (d)  the  neces 

(c)  See  bk.  1,  pt.  r,  §  94.  (d)  Chap.  1,  §  294. 


750      SECONDARY    RULES     OF    EVIDENCE. 

sity  for  resorting  to  it  is  more  frequent  in  the  latter 
than  in  the  former.  The  most  heinous  offenses  are 
usually  committed  in  secret, — visible  proofs  of  works 
of  darkness  must  not  be  expected  ; — and  accordingly, 
direct  testimony  against  criminals  is  rarely  attainable, 
except  in  those  cases  where  one  of  several  delinquents 
denounces  his  companions  at  the  bar  of  justice.  We 
do  not  mean  that,  for  want  of  legitimate  evidence,  the 
law  condemns  and  punishes  on  that  which  is  inferior 
or  less  conclusive — quite  the  reverse.  A  chain  of  pre- 
sumptive evidence  often  affords  proof  quite  as  convin- 
cing as  the  testimony  of  eye-witnesses  ;  (e)  and  as  in 
criminal  trials  the  interests  at  stake  are  greater,  and  the 
consequences  of  error  infinitely  more  serious,  a  higher 
degree  of  assurance  is  required  for  condemnatory 
decision,  than  in  civil  proceedings,  where  the  mere 
preponderance  of  probability  is  sufficient  ground  for 
adjudication.  (_/") 

440.  While  all  attempts  to  reduce  the  credibility 
of  evidence  to  fixed  degrees,  must  ever  be  deprecated 
as  absurd  and  mischievous,  the  experience  of  past  ages 
would  indeed  be  thrown  away,  if  it  did  not  point  out 
the  principal  quicksands  and  dangers  to  be  avoided, 
when  dealing  with  the  serious  question  of  the  guilt  or 
innocence  of  persons  charged  with  crime.  Numerous 
rules  have  from  time  to  time  been  suggested  for  the 
guidance  of  tribunals  in  this  respect,  among  which  the 
following  are  the  soundest  in  principle,  and  most  gen- 
erally recognized  in  practice  : 

1.  The  onus  of  proving  everything  essential  to  the 
establishment  of  the  charge  against  the  accused,  lies 
on  the  prosecutor.  (V) 

2.  The  evidence  must  be  such  as  to  exclude,  to  a 

(e)  Id.  §§  295,  297.  (g)   Supra,  sect.   2,    sub-sect.    3 

(/)  Bk.  i,  pt.  I,  §  95.  346. 


PRESUMPTIVE    EVIDENCE.  751 

moral  certainty,  every  reasonable  doubt  of  the  guilt  of 
the  accused.  (A) 

3.  In  matters  of  doubt  it  is  safer  to  acquit  than  to 
condemn  ;  for  it  is  better  that  several  guilty  persons 
should  escape,  than  that  one  innocent  person  should 
suffer,  (z) 

441.  The  above  hold  universally:  but  there  are 
two  others  peculiarly  applicable  when  the  proof  is  pre- 
sumptive. 

I.  There  must  be  clear  and  unequivocal  proof  of 
the  corpus  delicti.  (/£) '  Every  criminal  charge  involves 
two  things  :  first, that  an  offense  has  been  committed; 
and,  secondly,  that  the  accused  is  the  author,  or  one  of 
the  authors,  of  it.  "  I  take  the  rule  to  be  this,"  says 
Lord  Stowell  in  his  judgment  in  Evans  v.  Evans,  (/) — 
"  If  you  have  a  criminal  fact  ascertained,  you  may  then 
take  presumptive  proof  to  show  who  did  it;  to  fix  the 
criminal,  having  then  an  actual  corpus  delicti  .  .  .; 
out  to  take  presumptions  in  order  to  swell  an  equivo 
'„al  fact,  a  fact  that  is  absolutely  ambiguous  in  its  own 
nature,  into  a  criminal  fact,  is  a  mode  of  proceeding  of 
a  very  different  nature,  and  would,  I  take  it,  be  an  en- 
tire misapplication  of  the  doctrine  of  presumptions." 
Sir  Matthew  Hale,  also,  in  his  Pleas  of  the  Crown,  (m) 
laid  down  the  two  following  rules,  which  have  met 
with  deserved  approbation  :  "  I  would  never  convic 
any  person  for   stealing  the  goods   cujusdam    ignoti, 

(A)  Bk.  1,  pt.  1,  §  95.  (Qiuvres),     torn.    4,   pp.   422-3,   456. 

(?)  Introd.  pt.  2,  §  49,  and  bk.  I,  pt.  "  Diligenter  cavendum  judici,  ne  sup- 

I,  §  95.  plicium  prsecipitet,  antequam  de  crim- 

(k)  R.  v.  Burdett,  4  B.  &  A.  95,  123  ine  constiterit ;"    Matth.  de  Crim    ad 

and  162  ;   Wills,  Circ.  Evid.  156,  3rd  Dig.  lib.  48,  tit.  16,  c.  1,  n.  2. 

Ed.;   Evans  v.  Evans,  1    Hagg.  Con-  (/)  1  Hagg.  Cons.  Rep.  35,  105. 

sist.   Rep.   35,   105  ;    Burnett's    Crim.  (m)  2  Hale,  P.  C.  290. 
Law  of  Scotland,  529  ;   D'Aguesseau 

1  See  a?ite,  vol.  i.,  note  1,  p.  311,  and  cases  cited. 


752     SECONDARY    RULES     Oh    EVIDENCE. 

merely  because  he  would  not  give  an  account  how  he 
came  by  them,  unless  there  were  due  proof  made  that 
a  felony  was  committed  of  these  goods.  I  would  never 
convict  any  person  of  murder  or  manslaughter,  unless 
the  fact  were  proved  to  be  done,  or  at  least  the  body 
found  dead."  (n)  And  in  Starkie  on  Evidence  (o) 
it  is  stated  to  be  "  an  established  rule,  upon  charges  of 
homicide,  that  the  accused  shall  not  be  convicted  un- 
less the  death  be  first  distinctly  proved,  either  by  direct 
evidence  of  the  fact,  or  by  inspection  of  the  body." 
Such  is  the  language  of  these  eminent  authorities. 
But  the  general  principles  they  lay  down  must  be  taken 
with  considerable  limitation  ;  and,  in  order  to  treat  the 
subject  with  accuracy,  it  is  to  be  remarked,  that  in 
some  offenses  the  evidence  establishing  the  existence 
of  the  crime  also  indicates  the  criminal,  while  in  others 
the  traces  or  effects  of  the  crime  are  visible,  leaving  its 
author  undetermined  ;  the  former  being  denominated 
by  foreign  jurists  "  delicta  facti  transeuntis,"  and  the 
latter "  delicta  facti  permanentis."  (ft)  Under  the 
former,  i.e.  delicta  facti  transeuntis,  are  ranged  those 
offenses  the  essence  of  which  consists  in  intention  ;  such 
as  various  forms  of  treason,  conspiracy,  criminal  lan- 
guage, &c. ;  all  which  being  of  an  exclusively  psycho- 
logical nature,  must  necessarily  be  established  by  pre- 
sumptive evidence,  (y)  unless  the  guilty  party  chooses 
to  make  a  plenary  confession,  (r)  To  these  must  be 
added  the  crime   of  adultery,  respecting  which  Lord 

(m)  The    coincidence    between    this  862,  4th  Ed. 

and  the  following  is  observable  :  "De  (/)  Bonnier,  Traite  des   Preuves,  § 

corpore  interfecti   necesse  est  ut  con-  56  ;  Case    of    Capt.    Green    and    his 

stet.     .     .     .     Si  quis  fassus  se  furem,  Crew,  14  Ho.  St.  Tr.  1230. 

confessio   hoec  non  obest,  nisi  constet  {q)  3  Benth.  Jud.   Ev.  5  ;  R.  v.  Bur- 

etiam  in   specie  de  rebus  furto  sub-  dett,   4    B.    &  A.   95,-122;  Bonnier, 

tractis." — Matthseus,  de   Prob.  cap.  1,  Traite  des  Preuves,  §  56 ;  see   Introd 

n.  4-  pt.  1,  §  12. 

(o)  1  Stark.   Ev.   575,   3rd  Ed.  ;  Id.  (r)  Infra,  ch.  7. 


PRESUMPTIVE    EVIDENCE.  753 

Stowell  himself,  in  other  places,  lays  down  as  a  funda- 
mental rule,  that  it  is  not  necessary  to  prove  the  fact 
by  direct  evidence ;  (s)  but  that  it  is  enough  to  prove 
such  proximate  circumstances  as  by  former  decisions, 
or  their  own  nature  and  tendency,  satisfy  the  legal  con- 
conviction  of  the  court  that  the  criminal  act  has  been 
committed.  (t)  By  the  canon  law  of  this  country,  how- 
ever, this  crime  could  not  be  proved  by  the  unsup- 
ported confession,  however  plenary,  of  the  wife,  (u) 
But  the  Divorce  Court,  not  being  a  court  of  ecclesias- 
tical jurisdiction,  nor  bound  by  rules  of  merely  ecclesi- 
astical authority,  may  in  such  a  case  act  on  the 
admissions  of  the  wife,  although  they  are  not  supported 
by  any  other  evidence,  (v) 

442.  In  the  other  sort  of  cases — delicta  facti 
permanentis  ;  or,  as  they  have  been  sometimes  termed, 
delicta  cum  effectu  permanente,  (x)  the  proof  of  the 
crime  is  separable  from  that  of  the  criminal.  Thus  the 
finding  a  dead  body,  or  a  house  in  ashes,  may  indicate 
a  crime,  but  does  not  necessarily  afford  any  clue  to  the 
perpetrator.  And  here,  again,  a  distinction  must  be 
drawn  relative  to  the  effect  of  presumptive  evidence. 
The  corpus  delicti,  in  cases  such  as  we  are  now  con- 
sidering, is  made  up  of  two  things :  first,  certain  facts 
forming  its  basis ;  and,  secondly,  the  existence  of  crim- 
inal agency  as  the  cause  of  them,  (jy)  It  is  with  respect 
to  the  former  of  these,  that  the  general  principles  of 
Lord  Stowell  and  Sir  Matthew  Hale  especially  apply, 

(s)  Loveden   v.    Loveden.  2   Hagg.  (u)  See  the  judgment  of  Lord  Stow- 

Cons.  Rep.  I  ;  Williams  v.  Williams,  ell,  in  Mortimer  v.  Mortimer,  2  Hagg. 

I   Id.   299.     See  to  the  same  effect,  Cons.  Rep.  310,  316  ;  and  infra,  ch.  7, 

Ayl.   Parerg.  Jur.   Canon.  Angl.   45  ;  sect.  3,  sub-sect.  3. 

Mascard.   de   Prob.   Qusest.  10,  n.  16  ;  (v)  Robinson  v.  Robinson,  29  L.  J., 

and  Concl.  57-65  ;  Sanchez  de  Matri-  P.  &   M.   179;  Williams  v.  Williams 

monio,  lib.  io,  Disput.  12,  n.  40.  L.  Rep.,  1  P.  &  D.  29. 

(t)  Williams   v.  Williams,  1    Hagg.  (x)  14  Ho.  St.  Tr.  1230. 

Cons.  Rep.  299,  300.  (y)  "  Constare  (crimen)  non  dicitur, 


754     SECONDARY    RULES    OE    EVIDENCE. 


the  established  rule  being-,  that  the  facts  which  form 
the  basis  of  the  corpus  delicti  ought  to  be  proved, 
either  by  direct  testimony,  or  by  presumptive  evidence 
of  the  most  cogent  and  irresistible  kind  ;  or  by  a  clear 
and  unsuspected  confession  of  the  party.  (2)  This  is 
particularly  necessary  in  cases  of  murder,  where  the 
maxim  laid  down  by  Sir  Matthew  Hale  seems  to  have 
been  generally  followed  :  namely,  that  the  fact  of  death 
should  be  shown,  either  by  witnesses  who  were  present 
when  the  murderous  act  was  done,  or  by  proof  of  the 
dead  body,  or  some  portion  of  the  dead  body,  having 
been  found  ;  (a)  and  where  the  body  is  in  a  state  of  de- 
composition, or  is  reduced  to  a  skeleton,  or  is,  for  any 
other  reason,  in  such  a  state  as  to  render  identification 
by  inspection  impossible,  it  should  be  identified  by 
dress  or  circumstances.  (<$)  "Liquere  debet,  hominem 
esse  interemptum."  (c)  1 


simul  atque  de  facto  constiterit  :  etiam 
de  dolo  et  causa  facta  liquere  debet." 
Matth.  de  Ciimin.  ad  Dig.  lib.  48,  tit. 
16,  c.  1,  n.  2.  See  also  Bonnier, 
Traite  des  Preuves,  §  56. 

(2)  See  infra,  ch.  7. 

(a)  The  practice  of  simulating  death 
to  attain  particular  objects  is  common 
in  the  East.  See  Family  Library  : 
Sketches  of  Imposture.  Deception,  and 
Credulity,  ch.  9,  p.  139.  "  When 
some  officers  in  India  were  breakfast- 
ing in  the  commander's  tent,  the  body 
of  a  native,  said  to  have  been  mur- 
dered by  the  sepoys,  was  brought  in 
and  laid  down.  The  crime  could  not 
be  brought  home  to  any  one  of  them, 
yet  there  was  the  body.  A  suspicion, 
however,  crossed  the  adjutant's  mind, 
and,  having  the  kettle  in  his  hand,  a 
thought    struck    him    that    he    would 


pour  a  little  boiling .  water  on  the 
body.  He  did  so  ;  on  which  the  mur- 
dered remains  started  up  and  scamp- 
ered off."     No  authority  is  cited. 

(/>)  In  R.  v.  Clewes,  4  C.  &  P.  221, 
the  skeleton  of  a  man  was,  after  a 
lapse  of  twenty-three  years,  identified 
by  his  widow,  from  some  peculiarity 
about  the  teeth.  A  carpenter's  rule 
and  a  pair  of  shoes  found  with  his  re- 
mains were  also  identified.  When  a 
skeleton  is  found,  it  freqently  be- 
comes of  the  utmost  importance  to 
determine  whether  it  is  that  of  a  male 
or  female,  of  a  young  or  old  person. 
For  full  information  on  this  subject 
the  reader  is  referred  to  Beck's  Med. 
Juris,  p.  539,  et  seq.  7th  ed.,  where 
several  cases  illustrative  of  the  neces- 
sity of  attending  to  it  are  given. 

(c)  D'Aguesseau  (Giuvres),  torn.  4, 
P-  456- 


1  See  ante,  vol.  i.,  p.  311,  note  1,  C/ting  the  cases  of  Uzzer- 
dook  and  Webster. 


PRESUMPTIVE  EVIDENCE.  755 

443.  This  rule  rests  on  principles  which  have 
their  foundation  in  the  deepest  equity  and  soundest 
policy.  In  the  first  place,  when  the  crime  is  separable 
from  the  person  of  the  criminal,  many  sources  of  error 
are  introduced  which  do  not  exist  in  the  opposite  case. 
1.  A  given  event,  the  origin  of  which  is  unascertained, 
may  be  the  result  of  almost  innumerable  causes,  hav- 
ing their  source  either  in  accident  or  the  agency  of 
other  persons.  2.  The  danger  of  rashly  inferring  the 
guilt  of  a  suspected  person  from  inconclusive  circum- 
stances, may  be  aggravated  by  his  own  imprudence, 
or  even  by  his  criminal  agency  in  other  matters.  3. 
In  witnesses  and  tribunals,  the  love  of  the  marvellous 
and  the  desire  to  detect  great  crimes  committed  in 
secret.  4.  The  facility  afforded  by  the  preceding 
causes,  to  false  accusations  against  persons  who  are 
disliked.  In  the  second  place,  the  conviction  of  a 
man  for  an  imaginary  offense,  is  a  scandal  to  the  ad- 
ministration of  justice,  and  is  also  an  injury  to  society, 
infinitely  greater  than  an  erroneous  conviction  for  an 
offense  really  committed,  (d) 

444.  The  sound  policy  of  this  rule  is  fearfully 
established  by  some  old  cases.  A  very  celebrated  one, 
related  by  Sir  Edward  Coke,  has  been  already  given 
under  the  head  of  presumptions  made  in  disfavor  of 
the  spoliator,  (e)  Sir  Matthew  Hale  also  mentions 
an  instance,  where  a  man  was  missing  for  a  consider- 
able time,  and  there  was  strong  ground  for  presuming 
that  another  had  murdered  him,  and  consumed  the 
body  to  ashes  in  an  oven.  The  supposed  murderer 
was  convicted  and  executed ;  after  which  the  other 
man  returned  from  sea,  where  he  had  been  sent  against 

(d)  See  Introd.  pt.  2,  §  49  and  note  (e)  Supra,  sect.  2,  sub-sect.  8,  §  41J. 

(f)  there. 


/56      SECONDARY    RULES    OF    EVIDENCE. 

his  will  by  the  accused,  who,  though  innocent  of 
murder,  was  not  entirely  blameless.  (_/")  There  is 
also  the  case  of  a  man  named  John  Miles,  who  was 
executed  for  the  murder  of  his  friend  William  Ridley, 
with  whom  he  had  been  last  seen  drinking,  and  whose 
body  was  not  found  until  after  the  execution  of  Miles, 
The  deceased  had,  while  in  a  state  of  intoxication 
fallen  into  a  deep  privy,  where  no  one  thought  of 
looking  for  him.  (g)  This  rule  is  said  to  have  been 
carried  so  far,  that  where  the  mother  and  reputed 
father  of  a  bastard  child,  were  observed  to  strip  and 
throw  it  into  the  dock  of  a  seaport  town,  after  which 
the  body  of  the  infant  was  never  seen,  Gould,  J., 
who  tried  the  father  and  mother  for  the  murder,  ad- 
vised an  acquittal,  on  the  ground  that,  as  the  tide  of 
the  sea  flowed  and  reflowed  into  and  out  of  the  dock, 
it  might  possibly  have  carried  out  the  living  in- 
fant, (k) 

445.  Where,  however,  the  fact  of  the  murder  is 
proved  by  eye-witnesses,  the  inspection  of  the  dead 
body  may  be  dispensed  with  ;  as  is  well  illustrated  by 
the  case  of  R.  v.  Hindmarsh.  (z )  There  the  prisoner, 
a  seaman,  was  charged  with  the  murder  of  his  captain. 
The  first  count  of  the  indictment  alleged  the  murder 
to  have  been  committed  by  blows  with  a  large  piece 
of  wood,  and  the  second  by  throwing-  the  deceased 
into  the  sea.  It  appeared  in  evidence  that,  while  the 
ship  was  lying  off  the  coast  of  Africa,  with  other 
vessels  near,  the  prisoner  was  seen  one  night  to  take 
the  captain  up  and  throw  him  into  the  sea,  after 
which  he  was  never  heard  of;  while,  near  the  place  on 

(/)  2  Hale,  P.  C   290.  Ed.  Richer,  Amst.  1773. 

(g )  Theory  of  Presump''ye  Proof,  {h)  Per  Garrow,  arguendo,  in   R.  t 

Append,  case  5.     See  also  the  case  of  Hindmarsh,  2  Leach,  C.  L.  569,  571. 

Antoine  Pin,  5  Causes  Celebres,  j  19,  (j)  2  Leach,  C.  L.  560. 


PRESUMPTIVE    EVIDENCE.  757 

the  deck  where  the  captain  was  seen,  was  found  a 
billet  of  wood,  and  the  deck  and  part  of  the  prisoner's 
dress  were  stained  with  blood.  On  this  it  was  ob- 
jected by  the  prisoner's  counsel,  that  the  corpus  delicti 
was  not  proved,  as  the  captain  might  have  been  taken 
up  by  some  of  the  neighboring  vessels ;  citing  Sir 
Matthew  Hale  and  the  case  before  Gould,  J.  The 
court,  consisting  of  the  judge  of  the  Admiralty,  Ash- 
hurst,  J.,  Hotham,  B.,  and  several  doctors  of  the  civil 
law,  admitted  the  general  rule  of  law ;  but  Ashhurst, 
J.,  who  tried  the  case,  left  it  to  the  jury  upon  the  evi- 
dence, to  say  whether  the  deceased  was  not  killed  be- 
fore his  body  was  cast  into  the  sea ;  and  the  jury  hav- 
ing found  in  the  affirmative,  the  prisoner  was  convicted, 
which  conviction  was  afterwards  held  good  by  all  the 
judges. 

446.  Whether  it  is  competent,  even  in  extreme 
cases,  to  prove  the  basis  of  the  corpus  delicti  by  pre- 
sumptive evidence,  has  been  questioned.  But  it  seems 
a  startling  thing  to  proclaim  to  every  murderer  that, 
in  order  to  secure  impunity  to  himself,  he  has  nothing 
to  do  but  consume  or  decompose  the  body  by  fire,  by 
lime,  or  by  any  other  of  the  well-known  chemical 
menstrua,  or  to  sink  it  in  an  unfathomable  part  of  the 
sea.  (/)  Unsuccessful  attempts  of  this  kind  are 
known  to  have  been  made,  {k)  and  successful  ones 
may  have  remained  undiscovered. 

(/)  3  Benth.  Jud.  Ev.  234  ;  Bonnier,  inels   une    esperance    d'impunite,    en 

Traite  des  Preuves,  §  56.     We  believe  reconnaissant  qu'il  est   impossible   de 

that  Rolfe,  B.,  once  directed  a  grand  les    condamner,    lorsque    Ieur    cruelle 

jury,  that  the  rule  excluding  presump-  industrie  aura  ete  assez  hcureuse  pour 

tive  evidence  of  the  basis  of  the  cor-  de'rober   aux    yeux    de   la  Justice,  les 

pus  delicti  is  not  universal.     On  this  miserables    restes   de   celui  qu'ils  orit 

subject    Chancellor    D'Aguesseau    ex-  immole  a  leur  vengeance  :"   D'Agues- 

presses  himself  as  follows: — "A  Dieu  seau,  les  Plaidoyer  dans  la   cause   du 

ne  plaiseqnc  le  public  puis  jamais  nous  Sieur  de  la  Pivardtere,  Sec. 

reyrocher  que  nous  donnons  aux  crim-  (k)  In   R,   v.  Cook,  Leicester  Sum 


;$8     SECONDARY    RULES    OF    EVIDENCE. 

447.  The  basis  of  a  corpus  delicti  once  established 
presumptive  evidence  is  receivable  to  complete  the 
proof  of  it ;  as,  for  instance,  to  fix  the  place  of  the  com- 
mission of  the  offense  (/) — the  locus  delicti ;  (111)  and 
even  to  show  the  presence  of  crime,  by  negativing  the 
hypotheses,  that  the  facts  proved  were  the  result  of 
natural  causes,  or  irresponsible  agency.  For  this  pur- 
pose all  the  circumstances  of  the  case,  and  e^ery  part 
of  the  conduct  of  the  accused,  may  be  taken  into  con- 
sideration. («)  On  finding  a  dead  body,  for  instance, 
it  should  be  considered  whether  death  may  not  have 
been  caused  by  lightning,  cold,  noxious  exhalations, 
&c,  or  have  been  the  result  of  suicide.  On  this  latter 
subject  the  following  excellent  directions,  given  by 
Dr.  Beck  to  the  members  of  his  own  profession,  may 
not  inaptly  be  inserted  here  :  (0)  "  Besides  noticing 
the  surface  of  the  body,  and  ascertaining  whether 
ecchymosis  or  suggillation  be  present,  we  should  pay 
great  attention  to  the  following  circumstances :  The 
situation  in  which  the  wounded  body  is  found,  the  po- 

Ass.    1834,   Wills'  Circ.  Ev.   165,    3rd  his    brother-in-law,     Sir     Theodosius 

Ed.,    the    prisoner  was    tried    for    the  Boughton    (Warwick    Sp.    Ass.    1781, 

murder  of  a  creditor  who  had  called  Report  by  Gurney)  :  by  Parke,  B.,  in 

to    obtain    payment    of    a   debt,    and  R.  v.   Tawell,   who  was  convicted  of 

whose  body  he  had  cut  into  pieces  and  murder   by   poison   at   the   Aylesbury 

attempted   to  dispose   of  by   burning.  Spring  Assizes   of   1845   (Wills'   Circ. 

The  effluvium  and  other  circumstances,  Ev.   1S8,  3rd   Ed.);  by  Abbott,  J.,  in 

however,  alarmed  the  neighbors,  and  R.  v.   Donnall,   Launceston   Sp.    Ass. 

a  portion  of  the  body  remaining  uncon-  1817  (Id.  187)  ;  by  Wilde,  C.  J.,  in  R. 

sumed,  the  prisoner  was  convic'ed  and  v.  Hatfield,  Suit.  Sp.  Ass.  1847,  MS.  ; 

executed.    A  similar  attempt  was  made  by   Lord  Campbell,  in  R.   v.   Palmer, 

by  the  accused  in  The  Commonwealth  Cent.  Cr.  Ct.  May,  1856  ;  and  by  Pol- 

v.  Webster,  Burr.  Circ.  Evid.  6S2.  lock.  C  B.,  in  R.  v.   Smethurst,   Cent. 

(/)  R.  v.  Burdett,  4  B.  &  A.  95.  Cr.  Ct.  August,  1859.       See  also  R.  v 

(m)  Dicks.  Ev.  in  Scotl.  43.  Eldndge,    R.    &  R.   440,    and  R.   v 

(«)  So   laid  down  by  Buller,  J.,   in  White,  Id.  508. 
the  celebrated  case   of  Captain  John  (o)  Beck's  Med.  Jurisp  583,  7th  Ed. 

Donellan,    who    was    convicted     and  where   several    very  instructive  case* 

executed  for   the  murder  by  poison  of  are  collected. 


PRESUMPTIVE    EVIDENCE.  75^ 

sition  of  its  members,  and  the  state  of  its  dress,  the 
expression  of  countenance,  the  marks  of  violence,  if 
any  be  present  on  the  body,  the  redness  or  suffusion 
of  the  face.  The  last  is  important,  as  it  may  indicate 
violence  in  order  to  stop  the  cries  of  the  individual. 
The  quantity  of  blood  on  the  ground,  or  on  the 
clothes,  should  be  noticed,  and,  in  particular,  the 
probable  weapon  used,  the  nature  of  the  wound,  and 
its  depth  and  direction.  In  a  case  of  supposed  suicide, 
by  means  of  a  knife  or  pistol,  the  course  of  the  wound 
should  be  examined,  whether  it  be  upwards  or  down- 
wards, and  the  length  of  the  arm  should  be  compared 
with  the  direction  of  the  injury.  Ascertain  whether 
the  right  or  left  arm  has  been  used  ;  and,  as  the  former  is 
most  commonly  employed,  the  direction  should  corre- 
spond with  it,  and  be  from  right  to  left."  It  is  of  the  ut- 
most importance  to  examine  minutely,  for  the  traces  of 
another  person  at  the  scene  of  death  ;  for  it  is  by  no 
means  an  uncommon  practice  with  murderers,  so  to  dis- 
pose of  the  bodies  of  their  victims,  as  to  lead  to  the  sup- 
position of  suicide  or  death  from  natural  causes ;(/) 
while,  on  the  other  hand,  persons  about  to  commit  sui- 
cide, but  anxious  to  preserve  their  reputation  after  death 
or  their  property  from  forfeiture,  or  both,  have  not  un- 
frequently  endeavored,  by  special  preparations,  to  avert 
suspicion  of  the  mode  by  which  they  came  by  their 
end.  (g)  And  instances  have  occurred  where,  after 
death  from  natural  causes,  injuries  have  been  done  to 
a  corpse  with  a  view  of  raising  a  suspicion  of  murdei 
against  an  innocent  person,  (>)  The  following  case 
strongly  illustrates  the  difficulties  which  sometimes 
attend  investigations    of   this    nature :     A   man,    on 


(/)  Stark.  Ev.  857,  4th  Ed.  (r)  See  one  of  these,  bk.  2,  pt.  2,  § 

(?)  Id.  863.  4th  Ed.  206. 


760      SECONDARY    RULES    OF    EVIDENCE. 

detecting  his  wife  in  the  act  of  adultery,  fell  into  a 
state  of  distraction,  and  having  dashed  his  head 
several  times  against  a  wall,  struck  himself  violently 
and  repeatedly  on  the  forehead  with  the  cleaver,  until 
he  fell  dead  from  a  great  number  of  wounds.  All  this 
was  done  in  the  presence  of  several  witnesses;  but 
suppose  it  had  been  otherwise,  and  that  the  dead  body 
had  been  found  with  these  marks  of  violence  upon  it, 
murder  would  have  been  at  least  suspected,  (s)  And 
even  where  there  is  the  clearest  proof  of  the  infliction 
of  wounds,  death  may  have  been  caused  by  previous 
disease,  or  by  violence  from  some  other  source. 
Cases  illustrative  of  the  former  hypothesis  are  pretty 
numerous  ;  (J)  and  the  two  following  show  the  neces- 
sity of  not  overlooking  the  latter.  At  an  inn  in 
France,  a  quarrel  arose  among  some  drovers,  during 
which  one  of  them  was  wounded  with  a  knife  on  the 
face,  hand  and  upper  part  of  the  thorax  near  the  right 
clavicle.  The  injuries  were  examined  and  found  to  be 
superficial  and  slight.  They  were  washed,  and  an  hour 
afterwards  the  wounded  man  departed  for  his  home, 
but  the  next  morning  he  was  found  dead,  bathed  in 
blood.  Dissection  was  made,  and  the  left  lung  and 
pulmonary  artery  were  found  cut.  The  surgeons  de- 
posed that  this  injury  was  the  cause  of  death,  and  that 
it  must  have  been  inflicted  after  the  superficial  wound 
on  the  thorax,  which  was  not  bloody,  but  surrounded 
by  ecchymosis.  Such  proved  to  be  the  fact— on  his 
way  home  he  had  been  robbed  and  murdered.  (?/)  In 
another  case  a  girl  expired  in  convulsions  while  her 
father  was  in  the  act  of  chastising  her  for  a  theft ;  and 
she  was  believed,  both  by  himself  and  the  bystanders 

(s)  Beck's  Med.  Jurisp.  562,  7th  Ed.       lor's  Med.  Jurisp.  ch.  29,  7th  Ed. 
1   1  Several  will  be  found  in    Beck's  (u)  Beck's  Med.  Jurisp.  588,7th  E4 

Med.  Jurisp,  ch.  15,  7th  Ed.,  and    i 


PRESUMPTIVE    EVIDENCE.  761 

to  have  died  of  the  beating.  But,  although  there  were 
marks  of  a  large  number  of  pretty  severe  stripes  on 
the  body,  they  did  not  appear  to  the  medical  man  who 
saw  it  to  be  quite  sufficient  to  cause  death ;  and  he 
therefore  made  a  post-mortem  examination,  from 
which  and  other  circumstances  it  was  discovered,  that 
the  girl  on  finding  her  crime  detected  had  taken 
poison  through  fear  of  her  father's  anger,  (v) 

And,  lastly,  a  source  of  mischief  is  found  in  the 
destruction  or  fabrication  of  indicia,  through  the  con- 
duct of  persons  brought  in  contact,  by  duty  or  other- 
wise, with  the  bodies  of  individuals  who  have  met  with 
a  violent  death.  In  such  cases,  as  is  well  observed  by 
a  recent  writer  on  circumstantial  evidence  :  "  The  first 
observers  are  often  persons  who  are  so  exclusively 
impressed  by  the  event  itself,  as  to  overlook  what,  at 
the  time,  may  naturally  be  deemed  insignificant  mat- 
ters ;  to  take  no  note  of  them,  or  at  least,  none  that 
can  be  confidently  recalled  to  mind  afterwards. 
The  common  attentions  of  humanity  all  partake  of 
this  summary  character.  The  first  impulse  is  to  see 
what  relief  can  be  afforded  in  the  case.  The  body  of 
the  sufferer  is  turned  over,  raised  up,  perhaps  removed, 
the  blood  carefully  washed  from  the  wound,  &c.  In 
this  way  important  indications  may,  inadvertently,  be 
wholly  obliterated.  But  a  similar  injurious  effect  upon 
the  evidentiary  facts  may  be  produced  by  the  officious 
action  of  one  or  more  persons,  attracted  to  the  spot  by 
mere  curiosity.  The  implement  of  destruction  is 
often  first  discovered  by  observers  of  this  class;  it  is 
handled  with  more  or  less  of  interest, — passed  possibly 
from  hand  to  hand  among  several, — until  by  this  very 
process,  it  is  more  or  less  deprived  of  the  appearances 

(v)  Beck's  Med.  Jurisp.  766,  7th  Ed. 


762      SECONDARY    RULES    OF    EVIDENCE. 

which  give  it  its  peculiar  value  as  an  instrument  of 
evidence.  In  this  way  not  only  may  genuine  facts  be 
destroyed  and  lost,  but  spurious  facts  may  be  actually, 
though  unintentionally,  fabricated  and  interpolated 
into  the  case,  to  the  obvious  deception  or  confusion 
of  those  who  come  to  observe  afterwards,  and  who 
may  be  the  witnesses  actually  called  upon  to  tes- 
tify." (x)  A  good  illustration  of  this  is  afforded  by 
a  case  which  once  occurred  in  France.  A  young 
man  was  found  dead  in  his  bed,  with  three  wounds 
on  the  front  of  his  neck.  The  physician  who  was 
first  called  to  see  him  had,  unknowingly,  stepped 
on  the  blood  with  which  the  floor  was  covered,  and 
then  walked  into  an  adjoining  room,  passing  and 
repassing  several  times,  and  thus  left  a  number  of 
bloody  footprints  on  the  floor.  The  consequence  was 
that  suspicion  was  raised  against  a  party,  who  narrowly 
escaped  being  sent  to  take  his  trial  for  murder,  (jy) 

448.  It  is  in  cases  of  supposed  poisoning,  that  the 
nicest  questions  arise  relative  to  the  proof  of  a  corpus 
delicti.  The  evidences  of  poisoning  are  either  physi- 
cal or  moral.  Under  the  former  are  included  the 
symptoms  during  life  ;  the  appearance  of  the  body 
after  death,  or  on  dissection  ;  and  the  presence  of 
poison,  ascertained  by  the  application  of  chemical 
agents  used  for  its  detection.  Among  the  moral 
evidences  are  peculiar  facilities  for  committing  the 
crime,  the  purchasing  or  preparing  poisonous  ingre- 
dients, attempts  to  stifle  inquiry,  spreading  false 
rumors  as  to  the  cause  of  death,  abortive  endeavors 
to  cast  suspicion  on  others,  &c.  (V)  The  existence  of 
disease  (and  poison  is  not  unfrequently  administered 

(x)  Burrill,  Circ.  Ev.  141-2.  qui?    quanti?    per  quern  dedi?    quo 

(/)  Tayl.  Med.  Jurisp.  274,  7th  Ed.      conscio?"    Quintilian,  Inst.  Orat.  lib, 
(t)  "  Venerium  arguis :    ubi  emi  ?   a      5,  c.  7,  vers.  fin. 


PRESUMPTIVE    EVIDENCE.  763 

to  persons  laboring  under  it),  will  often  explain  the 
symptoms  during  life,  and,  in  some  cases,  the  appear- 
ances after  death,  which  latter  may  likewise  be  the 
result  of  putrefaction  ;  so  that,  in  order  to  obtain  clear 
proof  of  a  corpus  delicti,  tribunals  willingly  avail 
themselves  of  the  scientific  tests  which  chemistry 
lends  to  justice  for  the  detection  of  crime,  (a)  The 
value  of  these  tests  has,  however,  been  much  over- 
overrated.  An  infallibility  has  been  attributed  to 
them  which  they  most  certainly  do  not  possess ;  and  a 
notion  seems  to  have  got  abroad,  that  in  cases  of 
poisoning,  the  corpus  delicti  must  be  established  by 
those  tests  alone,  to  the  exclusion  of  all  consideration 
of  the  physical  and  moral  circumstances  of  the  case, 
— a  doctrine  which  is  both  contrary  to  law,  (J>)  and  an 
outrage  on  common  sense.  The  science  of  toxichol- 
ogy  is  not  by  any  means  in  a  perfect  state,  particularly 
as  regards  the  vegetable  poisons  ;  (V)  although  the 
tests  for  one  of  the  worst  of  them  (hydrocyanic,  or 
prussic  acid),  and  for  the  mineral  poison  most  com- 
monly used  for  criminal  purposes  (arsenic),  are 
among  the  most  complete.  It  is  always  advisable  to 
employ  as  many  tests  as  the  quantity  of  suspected 
matter  will  admit ;  for  in  the  case  of  each  individual 
test  there  may,  by  possibility,  be  other  substances  in 
nature,  which  would  produce  the  appearances  sup- 
posed to  be  peculiar  to  the  particular  poison  ;  and 
the  danger  always  exists,  more  or  less,  of  forming  the 
substance,  the  existence  of  which  is  suspected,  by 
means  of  the  chemical  agents  used  for  its  detection. 
But   when    several   tests,  based  on  principles  totally 

(a)  The  tests  of  a  large  number  of      Taylor's  Med.  Jurisp. 
poisons  are  given  with  great  minute-  {b)  See  supra,  §  447. 

ness  in  Beck's  Med.  Jurisp.     See  also  (c)  Beck's  Med.  Jurisp.  754,  7th  Ed 


764     SECONDARY    RULES     OF    EVIDENCE. 

distinct,  are  applied  to  different  portions  of  a  suspected 
substance,  and  each  gives  the  characteristic  results  of  a 
known  poison,  the  chances  of  error  are  indefinitely 
removed ;  and  the  proof  of  the  existence  of  that 
poison  in  that  substance,  especially  if  there  are  corro- 
borative circumstances,  comes  short  only  of  positive 
demonstration.1 

449.  In  dealing  with  cases  of  suspected  poisoning 
it  must  be  remembered,  that  even  when  poison  is 
actually  obtained  from  the  dead  body,  it  may  not  only 
have  been  taken  by  accident,  or  with  the  view  of  com- 
mitting suicide,  but  that  instances  have  occurred, 
where,  after  death  from  natural  causes,  a  poisonous 
substance  has  been  introduced  into  the  corpse,  (V)  or 
into  matter  vomited  or  discharged  from  the  bowels, 
(V)  with  the  view  of  raising  a  suspicion  of  murder. 
This  may,  however,  be  detected  by  a  careful  post 
mortem  examination,  (/)  and  attention  to  the  moral 
circumstances  of  the  case.2 

450.  Whatever  may  be  the  admissibility  or  effect 
of  presumptive  evidence  to  prove  the  corpus  delicti,  it 
is  always  admissible,  and  it  is  often,  especially  when 
amounting  to  evidentia  rei,  most  powerful  to  disprove 
it.  Thus,  the  probability  of  the  statements  of  wit- 
nesses may  be  tested  by  comparing  their  story  with 
the  surrounding  circumstances ;  and  in  practice  false 
testimony  is  often  encountered  and  overthrown  in 
this  way.     Sir  Mathew  Hale  relates  an  extraordinary 

(</)  Beck's  Med.  Jarisp,  770,  7th  Ed.  the   traces   of  recent  inflammation   in 

(<f)    Taylor's    Med.    Juri>p.    16,    4th  the  upper  intestines,  can  not,  it  is  said, 

Ed.  be  imitated  by  poison   injected  after 

(/)  Some  consequences  of  poison-  death.     Beck's  Med.  Jurisp.  770,  7th 

ii.g  during  life,  such,  for  instance,  as  Ed. 

1  Wharton  on  Homicide,  §  727. 

3  See  post,  note  to  chapter  on  Opinion  Evidence,  as  to  the 
taking  of  life  by  poisons,  and  the  evidence  in  such  cases. 


PRESUMPTIVE    EVIDENCE.  765 

trial  for  rape,  which  took  place  before  him  in  Sussex  , 
where  the  party  indicted  was  an  ancient  wealthy  man, 
tnrned  of  sixty,  and  the  charge  was  fully  sworn  against 
him  by  a  young  girl  of  fourteen,  with  the  concurrent 
testimony  of  her  mother  and  father  and  some  other 
relations ;  and  where  the  accused  defended  himself 
successfully,  by  showing  that  he  had  for  many  years 
been  afflicted  with  a  rupture,  so  hideous  and  great  as 
to  render  sexual  intercourse  impossible,  {g)  In  an- 
other case,  the  prosecutrix  of  an  indictment  against  a 
man,  for  administring  arsenic  to  her  to  procure  abor- 
tion, deposed  that  he  had  sent  her  a  present  of  tarts, 
of  which  she  partook,  and  that  shortly  afterwards  she 
was  seized  with  symptoms  of  poisoning.  Amongst 
other  inconsistencies,  she  stated  that  she  had  felt 
a  coppery  taste  in  the  act  of  eating,  which  it  was 
proved  that  arsenic  does  not  possess  ;  and  from  the 
quantity  of  arsenic  in  the  tarts  which  remained  un- 
touched, she  could  not  have  taken  above  two  grains  ; 
while,  after  repeated  vomitings,  the  alleged  matter 
subsequently  preserved  contained  nearly  fifteen  grains 
though  the  matter  first  vomited  contained  only  one 
grain.  The  prisoner  was  acquitted,  and  the  prosecu- 
trix afterwards  confessed  that  she  had  preferred  the 
charge  from  jealousy.  (A) 

45 1.  II.  The  hypothesis  of  delinquency  should  be 
consistent  with  all  the  facts  proved,  (z)  The  chief 
danger  to  be  avoided  when  dealing  with  presumptive 
evidence,  arises  from  a  proneness  natural  to  man,  to 
jump  to  conclusions  from  certain  facts,  without  duly 
adverting  to  others,  which  are  inconsistent  with  the 

(g)  1  Hale,  P.  C.  635.     See  bk.  2,  ate    judgement    of    Lord    Stowell    in 

pt.  2.  §  201.  Evans  v.  Evans,  1  Hagg.  Cons.  Rep 

(h)  R.  v.   Whalley,  York   Sp.   Ass.  105. 
1829,   Wills'  Circ.  Ev.    122,   3rd   Ed.  (*)  1  Stark.  Ev.  561,  573    3rd  Ed.  j 

See  further  on  this  subject  the  elabor-  Id.  842,  859,  4th  Ed. 


-.66    SECONDARY    RULES    OF    EVIDENCE. 

hypothesis  which  those  facts  seem  to  indicate.  (/£) 
"  The  human  mind,"  says  Lord  Bacon,  (/)  "  has  this 
property,  that  it  readily  supposes  a  greater  order  and 
conformity  in  things  than  it  finds ;  and  although 
many  things  in  nature  are  singular  and  entirely  dis- 
similar, yet  the  mind  is  still  imagining  parallels,  corres- 
pondences, and  relations  between  them  which  have  no 
existence."  This  tendency  of  the  mind  is  very  per- 
ceptible in  the  physical  sciences,  of  which  perhaps  the 
most  apposite  instance,  is  its  having  been  for  so  many 
ages  assumed  as  indisputable,  that  the  planetory  mo- 
tions must  necessarily  be  circular,  or  at  least  com- 
pounded of  circular  motions,  to  the  utter  exclusion 
of  all  less  regular  figures.  (;;z)  When  Copernicus 
also  promulgated  his  theory  of  the  solar  system,  it 
was  objected  that,  if  this  hypothesis  were  true,  the  in- 
ferior planet  Venus  must,  at  times,  appear  gibbous 
like  the  moon  ;  a  fact  which  was  afterwards  fully  es- 
tablished, on  the  invention  of  the  telescope,  (n)  And 
in  dealing  with  questions  of  fact,  this  natural  propen- 
sity can  not  be   too  closely  watched.     If,  as  was  well 

(k)  Supra,  ch.  I,  §  298.  temporis  fur,  quanto  erat  ab  authori- 

(/)  "Intellectus    humanus,    ex   pro-  tate  omnium  philosophorum  instructor 

prietate   sua,  facile  supponit  majorem  et  metaphysicse  in  specie  convenien- 

ordinem  et  sequalitatem  in  rebus, quam  tior."       Kepler,    De    Motibus    Stelloe 

invenit  :  et  cum  multa  sint  in  natura  Martis.  pars  3,  cap.  40.     So,  it  was  a 

monodica  et  plena  imparitatis,  tamen  received    notion  among  many  in  the 

afiingit  parallela,   et  correspondentia,  earlier  and  middle  ages,  that  the  num- 

et  relativa  quae  non   sunt."      Bacon's  ber  seven  enjoyed  a  species  of  predom- 

Novurr.  Organum,  Aphorism  45.     See  inance  in  creation — there  being  seven 

also  Bacon's  Advancement  of  Learn-  notes  in  music,  seven  primary  colors, 

ing,  bk.  2.  seven  days  in  the  week,  &c.  ;  from  all 

(in)  This  ancient  prejudice  proved  a  all  of  which  it  was  sagaciously  inferred 

great  source  of  embarrassment  to  Kep-  that  there  necessarily  could  not  be  more 

ler,  by  whom  the  elliptical  movements  than  seven  planets, 
were  first  discovered.    In  investigating  («)    Herschel's    Discourse    on    the 

the  planetary  orbits,  he  says,  "  Primus  Study  of  Natural  Philosaphy,  pt.  3, 

meus  error,  fuit,  viam  planetse  perfec-  ch.  3. 
turn  esse  circulum  ;  tantum  nocentior 


PRESUMPTIVE    EVIDENCE.  767 

said  by  some  one,  a  certain  number  of  pieces  of  wood 
will  build  a  house,  with  the  exception  of  one  cross 
beam,  it  is  the  natural  tendency  of  the  mind  to  reject 
that  beam.  It  should  never  be  forgotten,  as  observed 
by  an  able  writer  on  the  law  of  evidence,  that  all  facts 
and  circumstances  which  have  really  happened,  were 
perfectly  consistent  with  each  other,  for  they  did 
actually  so  consist ;  (0)  an  inevitable  consequence  of 
which  is,  that  if  any  of  the  circumstances  established 
in  evidence,  is  absolutely  inconsistent  with  the  hypo- 
thesis of  the  guilt  of  the  accused,  that  hypothesis  can 
not  be  true.  Take  the  case,  put  in  a  former  section, 
(ft)  of  a  man  being  indicted  for  stealing  a  piece  of 
timber,  and  a  large  body  of  circumstantial  evidence 
being  adduced,  to  show  that  it  was  earned  off  by  one 
person,  and  that  person  the  prisoner.  Now,  suppose 
it  were  to  transpire,  in  the  course  of  the  trial,  that  the 
article  stolen  was  so  heavy  that  twenty  men  could  not 
move  it,  here  would  be  a  fact  absolutely  inconsistent 
with  the  hypothesis  of  guilt,  and  clearly  indicating 
mistake  or  mendacity  somewhere.  And  not  only  may 
the  hypothesis  of  guilt  be  overturned  by  facts  abso- 
lutely falsifying  it,  but  due  attention  should  be  paid  to 
all  contrary  hypotheses  and  infirmative  circumstances. 

(0)1   Stark.  Ev.  560,  3td  Ed.;  Id.  (/)  Supra,   sect.  I,    sub-sect.    3     \ 

842,  4th  Ed.  332. 


;68      SECONDARY    RULES    OF    EVIDENCE. 


SUB-SECTION    III. 

INCULPATORY     PRESUMPTIVE      EVIDENCE     IN     CRIMINAL 

PROCEEDINGS. 

PARAGRAPH 

Inculpatory  presumptive  evidence  in  criminal  proceedings     .         .         .  452 

1.  Real  evidence 452 

2.  Evidence  from  antecedent  conduct  or  position    ....  452 

3.  Evidence  from  subsequent  conduct  .....  452 

4.  Confessorial  evidence 452 

I.  Motives,  means,  and  opportunities  ......  453 

II.  Preparations,  and  previous  attempts 454_5 

Informative  hypotheses       .......        456-7 

III.  Declarations  of  intention,  and  threats     ......         458 

Infirmative  hypotheses        .......  458 

IV.  Change  of  life  or  circumstances 459 

V.  Evasion  of  justice 460 

Change  of  place  only  presumptive  evidence  of               .         .  461 

Infirmative  hypotheses 462-3 

Offenses  committed  under  prospect  of  change  of  place         .  464 

Ancient  laws  on  this  subject      ......  465 

VI.  Fear  indicated  by  passive  deportment,  &c 466 

Infirmative  hypotheses 466 

Confusion  of  mind         .         .......         466 

VII.  Fear  indicated  by  a  desire  for  secrecy 467 

452.  We  now  proceed  to  examine  more  in  detail 
the  principal  forms  of  inculpatory  presumptive  evi- 
dence in  criminal  cases.  They  are  reducible  to  these 
general  heads:  (^) 

First.  Real  Evidence,  or  evidence  from  things. 

Secondly.  Evidence  derived  from  the  antecedent 
conduct  or  position  of  the  accused.     Under  this  head 

(q)  The  author  deems  it  common  full  benefit  of  the  strong  sense  and 
justice,  to  acknowledge  the  large  use  observant  mind  of  the  writer,  confi- 
ne has  made  throughout  this  sub-sec-  parativelv  free  from  the  peculiar  no- 
tion, of  the  5th  Book  of  Bentham's  tions  and  erroneous  views  which  per- 
Treatise  on  Judicial  Evidence,  where  vade  and  disfigure  so  much  of  the 
he  treats  of  circumstantial  evidence.  rest. 
In  that  part  of  his  work,  we  have  the 


PRES  UMPTIl  TE    E  VIDENCE. 


769 


come  motives  to  commit  the  offense  :  means,  and 
opportunities  of  committing  it :  preparations  for  the 
commission  of,  and  previous  attempts  to  commit  it  : 
declarations  of  intention,  and  threats  to  commit  it. 

Thirdly.  Evidence  derived  from  the  subsequent 
conduct  of  the  accused.  To  this  class  belong  sud- 
den chancre  of  life  or  circumstances :  silence  when  ac- 
cused :  false  or  evasive  statements  made  by  the 
accused :  suppression  or  eloignment  of  evidence : 
forgery  of  exculpatory  evidence :  evasion  of  justice, 
by  flight  or  otherwise  :  tampering  with  officers  of 
justice  :  and  fear,  indicated  either  by  passive  deport- 
ment or  a  desire  for  secrecy. 

Fourthly.  Confessorial  evidence. 

Each  of  these  has  of  course  its  peculiar  probative 
force  and  infirmative  hypotheses.  The  subject  of  real 
evidence  has  been  treated  in  a  former  part  of  this 
work  ;  (r)  the  suppression  and  eloignment  of  evidence, 
and  the  forgery  of  exculpatory  evidence,  have  been 
mentioned  under  the  head  of  presumptions  in  disfavor 
of  a  spoliator ;  (Y)  while  silence  under  accusation, 
and  false  or  evasive  statements,  as  likewise  confessorial 
evidence,  will  be  reserved  for  the  title  of  self-regarding 
evidence,  (f)  to  which  they  most  properly  belong. 
The  others  will  now  be  treated  in  their  order. 

453.  I.  Motives  to  commit  the  offense,  and 
means  and  opportunities  of  committing  it. — A  mis- 
chievous event  being  supposed  to  have  been  produced, 
and  Titius  being  suspected  of  having  been  concerned 
in  the  production  of  it,  "What  could  have  been  his 
motive?"  says  a  question,  the  pertinency  of  which 
will  never  be  matter  of  dispute,  (u)     The  mere  fact, 


(r)  Bk.  2,  pt.  2. 

\s)  Supra,  sect.  2,  sub-sect.  8. 


(/)  Infra,  ch.  7. 

(m)  3  Benth.  Jud.  Ev.  183. 


49 


770     SECONDARY    RULES    OF    EVIDENCE. 

however,  of  a  party  being  so  situated,  that  an  advan- 
tage would  accrue  to  him  from  the  commission  of  a 
crime,  amounts  to  nothing,  or  next  to  nothing,  as  a 
proof  of  his  having  committed  it.  Almost  every 
child  has  something  to  gain  by  the  death  of  his 
parents,  but  how  rarely,  on  the  death  of  a  parent,  is 
parricide  even  suspected?  (x)  Still,  under  certain  cir- 
cumstances, the  existence  of  a  motive  becomes  an 
important  element  in  a  chain  of  presumptive  proof; 
as  where  a  person,  accused  of  having  set  fire  to  his 
house,  has  previously  insured  it  to  an  amount  exceed- 
ing its  value ;  or  where  a  man,  accused  of  the  murder 
of  his  wife,  has  previously  formed  an  adulterous  con- 
nection with  another  woman,  &c.  On  the  other  hand 
the  absence  of  any  apparent  motive  is  always  a  fact  in 
favor  of  the  accused ;  although  the  existence  of 
motives,  invisible  to  all  except  the  person  who  is  in- 
fluenced by  them,  must  not  be  overlooked.  The  in- 
firmative  hypotheses  affecting  motives  to  commit  an 
offense  are  applicable,  also,  to  means  and  opportunities 
of  committing  it ;  (jj/)  and  some  unhappy  cases  show 
the  danger  of  placing  undue  reliance  on  them.  A 
female  servant  was  charged  with  having  murdered  her 
mistress.  No  persons  were  in  the  house  but  the  de- 
ceased and  the  prisoner,  and  the  doors  and  windows 
were  closed  and  secure  as  usual.  The  prisoner  was 
condemned  and  executed,  chiefly  on  the  presumption 
that  no  one  else  could  have  had  access  to  the  house ; 
but  it  afterwards  appeared,  by  the  confession  of  one 
of  the  real  murderers,  that  they  had  gained  admittance 
into  the  house,  which  was  situated  in  a  narrow  street, 
by  means  of  a  board  thrust  across  the  street  from  an 
upper  window  of  an  opposite  house,  to  an  upper  win 

(jr)  Id.  187-8.  (y)  Id.  189. 


PRESUMPTIVE    EVIDENCE.  771 

dow  of  that  in  which  the  deceased  lived ;  and  that, 
having  committed  the  murder,  they  retreated  the 
same  way,  leaving  no  traces  behind  them.  (2) 

454.  II.  Preparations  for  the  commission  of  an 
offense,  and  previous  attempts  to  commit  it. — Under 
the  head  of  preparations  for  the  commission  of  an 
offense,  may  be  ranked  the  purchasing,  collecting,  or 
fashioning  instruments  of  mischief;  repairing  to  the 
spot  destined  to  be  the  scene  of  it ;  acts  done  with 
the  view  of  giving  birth  to  productive  or  facilitating 
causes,  or  of  removing  obstructions  to  its  execution,  or 
averting  suspicion  from  the  criminal,  (a)  Besides 
preparations  of  this  nature,  which  are  immediately 
pointed  to  the  accomplishment  of  the  principal  design, 
there  are  others  of  a  secondary  nature,  for  preventing 
discovery  or  averting  suspicion  of  the  former.  (6)  In 
addition  to  these  preparations  of  the  second  order, 
may  be  imagined  preparations  of  the  third  and  fourth 
orders,  and  so  on.  (c) 

455.  Of  all  species  of  preparations,  those  which 
are  resorted  to  for  the  purpose  of  averting  suspicion 
from  the  criminal,  require  the  the  most  particular 
notice.  A  remarkable  instance  is  presented  in  the 
case  of  Richard  Patch,  who  was  convicted  and  ex- 
ecuted for  the  murder  of  his  patron  and  friend  Isaac 
Blight.  The  prisoner  and  deceased  lived  in  the  same 
house,  and  the  latter,  while  sitting  one  evening  in  his 
parlor,  was  shot  by  a  pistol  from  an  unseen  hand.  A 
strong  and  well-connected  chain  of  circumstantial  evi- 
dence fixed  Patch  as  the  murderer  ;  in  the  course  of 
which  it  appeared  that,  a  few  evenings  before  that  on 


(z)  Stark.   Ev.   865,   4th    Ed.      For  (a)  3  Benth.  Jud.  Ev.  63, 64. 

mother   instance     see    Burrill,    Circ.  (/')  Id.  64. 

p.vid.  37 r.  (c)  Id.  65. 


772     SECONDARY    RULES     OF    EVIDENCE. 

which  the  murder  was  committed,  and  while  the 
deceased  was  away  from  home,  a  loaded  gun  or  pistol 
had  been  discharged  into  the  room,  in  which  the 
family  when  at  home  usually  passed  their  evenings. 
This  shot  the  prisoner  represented  at  the  time  as  hav- 
'ng  been  fired  at  him,  but  there  was  every  reason  to 
^elieve  that  it  must  have  been  fired  by  himself,  in 
order  to  induce  the  deceased  and  his  servants  to  sup- 
pose that  assassins  were  prowling  about  the  building. 
(d)  Murderers  are  frequently  found  busy  for  some 
time  previous  to  their  crime,  in  spreading  rumors 
that  from  ill-health,  imprudence,  or  other  cause,  the 
existence  of  their  victim  is  likely  to  be  short ;  (e) 
others  prophesy  impending  mischief  to  him  in  more 
defined  terms ;  and  those  in  the  lower  walks  of  life 
throw  out  dark  and  mysterious  hints  as  to  his  ap- 
proaching death.  (_/")  The  object  of  all  this  is  to  pre- 
pare the  minds  of  his  friends  and  neighbors  for  the 
event,  and  by  diminishing  surprise,  to  prevent  investi- 
gation into  its  cause.1     Previous  attempts  to  commit 

id)  Trial  of  Richard   Patch,  for  the  (e)  3  Benth.  Jud.  Ev.  65-66  ;  Wills, 

murder  of  Isaac  Blight,  London,  1806.  Circ.  Ev.  79,  3rd  Ed. 

For  another  instance,  see  R.  v.  Cour-  {/)  Stark.  Ev.  850,  4th  Ed. 
voisier,  Wills,  Circ.  Ev.  241,  3rd  Ed. 

1  See,  perhaps,  the  most  remarkable  case  of  attempted 
forgery  of  evidence  on  record,  in  Commonwealth  v.  Knapp 
in  Massachusetts,  in  1830.  Mr.  White,  a  wealthy  and  highly 
respectable  citizen  of  Salem,  in  that  state,  about  eighty  years 
of  age,  was  murdered  in  his  bed  on  the  morning  of  April  7th, 
of  that  year,  under  such  circumstances  as  to  create  the  great 
est  public  excitement.  Mr.  White  was  childless,  and  his  only 
legal  representatives  in  case  of  his  death  would  be  his  house- 
keeper, a  Mrs.  Beckford,  who  was  the  only  child  of  a  deceased 
sister,  and  four  nephews  and  nieces,  children  of  a  deceased 
brother.  He  was  known  to  have  executed  a  will,  by  which  he 
left  the  larger  portion  of  his  property  to  Stephen  White,  one 
ot  the   children  of  the   testator's   brother,  and   only  a    small 


PRESUMPTIVE    EVIDENCE.  773 

an  offense  are  closely  allied  to  preparations  for  the 
commission    of  it,   and    only    differ   in  being   carried 

legacy  to  Mrs.  Beckford.  A  daughter  of  Mrs.  Beckford  mar- 
ried Joseph  J.  Knapp,  Jr.,  the  son  of  Joseph  J.  Knapp,  a  ship- 
master of  Salem.  Shortly  after  the  murder,  Joseph  J.  Knapp, 
the  father,  received  a  letter  obscurely  intimating  that  the  party 
writing  the  letter  was  possessed  of  a  secret  connected  with 
the  murder,  for  the  preservation  of  which  he  demanded  a 
"  loan  "  of  three  hundred  and  fifty  dollars.  This  letter  Mr. 
Knapp,  unable  to  comprehend  it,  handed  to  his  son,  Joseph  J. 
Knapp,  Jr.,  who  returned  it,  saying  he  might  hand  it  to  a  vig- 
ilance committee,  which  had  been  appointed  by  the  citizens  on 
the  subject.  This  he  did,  and  it  led  to  the  arrest  of  Charles 
Grant,  the  writer.  Grant  was  led  to  make  a  statement  to  the 
effect  that  he  had  been  a  guest  of  two  brothers,  R.  Crown  in- 
shield,  Jr.,  and  J.  Crowninshield,  who  had  been  employed  by 
John  Francis  Knapp,  a  brother  of  Joseph  J.,  Jr.,  to  kill  Mr. 
White,  for  which  Joseph  J.,  Jr.,  was  to  pay  them  one  thousand 
dollars;  the  motive  being  the  supposition  on  Knapp's  part, 
that,  in  case  Mr.  White  should  die  intestate  (they  undertaking 
to  possess  themselves  of  and  destroy  the  will,  at  or  about  the 
time  of  the  murder),  a  moiety  of  his  property  would  go  to 
Mrs.  Beckford,  his  sister,  and  the  other  to  the  children  of  his 
deceased  brother,  in  which  case  Knapp's  wife  would  be  Mrs. 
Beckford's  heir.  Grant  had  himself  been  solicited  to  assist 
the  Crowninshields  at  the  murder,  but  had  declined.  He 
(Grant)  had  been  informed  by  George  Crowninshield  that 
the  housekeeper  would  be  away  all  the  time  ;  that  the  object 
of  Joseph  J.  Knapp,  Jr.,  was  first  to  destroy  the  will,  and  that 
he  could  get  from  the  housekeeper  the  keys  of  the  iron  chest 
in  which  it  was  kept.  On  the  night  of  the  murder,  Grant 
stayed  at  the  "Half-way  House,"  in  Lynn.  In  the  meantime 
suspicion  was  greatly  strengthened  by  Joseph  J.  Knapp,  Jr., 
writing  a  pseudonymous  letter  to  the  vigilance  committee, 
trying  to  throw  the  suspicion  on  Stephen  White.  Richard 
Crowninshield,  George  Crowninshield,  Joseph  J.  Knapp,  Jr., 
and  John  F.  Knapp,  were  arrested  and  committed  for  murder. 
The  sequel  was  tragic.  Joseph  J.  Knapp,  under  promise  of 
government  favor,  made  a  confession,  which,  however,  after- 
wards, upon  the  trial,  he  refused  to  testify  to.  Richard  Crownin- 
shield made  an  ineffectual  attempt,  when  in  prison,  to  influence 
Grant,  who  was  in  the  cell  below,  not  to  testify,  and  when  this 
failed,  committed  suicide.    John  F   Knapp  was  then  convicted 


774     SECONDARY    RULES     OF    EVIDENCE. 

one  step  further  and  nearer  to  the  criminal  act,  oi 
which,  however,  like  the  former,  they  fall  short.  (  g)  l 

456.  The  probative  force,  both  of  preparations 
and  previous  attempts,  manifestly  rests  on  the  pre- 
sumption, that  an  intention  to  commit  the  individual 
offense  was  formed  in  the  mind  of  the  accused,  which 
persisted  until  power  and  opportunity  were  found  to 
carry  it  into  execution.  But  however  strong  this 
presumption  may  be  when  the  corpus  delicti  has  been 
proved,  it  must  be  taken  in  connection  with  the 
following  infirmative  hypothesis.  i°.  The  intention 
of  the  accused  in  doing  the  suspicious  act  is  a  psycho- 
logical question,  and  may  be  mistaken.  His  intention 
may  either  have  been  altogether  innocent,  or,  if  crim- 
inal, directed  towards  a  different  object.  (//)  1.  Thus 
a  person  may  be  poisoned,  and  another,  innocent  of 
his  death,  may,  a  short  time  before,  have  purchased  a 
quantity  of  the  same  poison  for  the  purpose  of 
destroying  vermin.  So,  predictions  of  approaching 
mischief  to  an  individual,  who  is  afterwards  found 
murdered,  m'ay  frequently  be  explained  on  the  ground 
that  the  accused  was  really  speaking  the  conviction  of 

(g)  3  Benth.  Jud.  Ev.  69.  (k)  3  Benth.  Jud.  Ev.  72. 

as  principal,  and  Joseph  J.  Knapp,  Jr.,  as  accessory  before  the 
fact,  and  were  executed.  George  Crowinshield  proved  an 
alibi,  and  was  discharged. 

It  is  curious  to  observe  that  the  murderers  acted  on  a  mis- 
take of  law,  they  supposing  that  Mr.  White's  representatives, 
in  case  of  his  death  intestate,  would  take  per  stirpes,  whereas 
in  fact  they  would  take  per  capita;  so  that  Mrs.  Beckford, 
to  increase  whose  estate  the  murder  was  committed,  actually 
received  no  more  by  an  intestacy  than  she  would  have 
by  the  will.  The  prosecution  in  this  famous  case  was  con- 
ducted by  Daniel  Webster,  and  his  summing  up  therein  is  one 
of  the  most  masterly  efforts  in  the  history  of  jurisprudence. 

1  But  as  to  inferences  from  such  previous  attempts,  see 
Wharton  or    Homicide,  §  696. 


PRESUMPTIVE    EVIDENCE.  775 

his  own  mind,  without  any  criminal  intention — pro- 
phecies of  death  are  much  more  frequently  the  offspring 
of  superstition  than  of  premeditated  assassination.  2. 
As  an  example  of  criminal  intention  with  a  different 
object — murder  by  fire-arms  is  not  uncommon  ;  and  a 
person  innocent  of  a  murder  might,  a  short  time 
previous  to  its  commission,  have  purchased  a  gun  for 
the  purpose  of  poaching,  or  even  have  stolen  one 
which  is  found  in  his  possession.  So,  A  might 
purchase  a  sword  or  pistol  for  the  purpose  of  fighting 
a  duel  with  B  ;  and  before  the  meeting  took  place,  the 
weapon  might  be  purloined  or  stolen  by  C,  in  order 
to  assassinate  D. 

457.  20.  But,  even  when  preparations  have  been 
made  with  the  intention  of  committing,  or  previous 
attempts  have  been  made  to  commit,  the  identical 
offense  charged,  two  things  remain  to  be  considered ; 
(7)  1.  The  intention  may  have  been  changed  or 
abandoned,  before  execution.  Until  a  deed  is  done, 
there  is  always  a  locus  pcenitentiae  ;  and  the  possibility 
of  a  like  criminal  design  having  been  harbored  and 
carried  into  execution  by  other  persons,  must  not  be 
overlooked.  2.  The  intention  to  commit  the  crime 
may  have  persisted  throughout,  but  the  criminal  may 
have  been  anticipated  by  others.  A  remarkable  in- 
stance of  this  is  presented  by  the  celebrated  case  of 
Jonathan  Bradford.  This  man  was  an  innkeeper.  In 
the  middle  of  the  night,  a  guest  in  his  house  was 
found  murdered  in  bed,  his  host  standing  over  the 
bed,  with  a  dark  lantern  in  one  hand  and  a  knife  in 
the  other.  The  knife  and  the  hand  which  held  it  were 
both  bloody,  and  Bradford  on  being  thus  discovered 
exhibited  symptoms  of  the  greatest  terror.     He  was 

CO  w.  74- 


776     SECONDARY    RULES    OF    EVIDENCE. 

convicted  and  executed  for  this  murder ;  but  it  after- 
wards appeared  that  it  had  been  committed  by  another 
person  immediately  before  Bradford  came  into  the 
room  of  the  deceased.  He  had,  however,  entered  the 
room  with  a  similar  design  ;  the  symptoms  attributed 
to  consciousness  of  guilt,  were  partly  attributable  to 
surprise  at  finding  his  purpose  anticipated  ;  while  the 
blood  on  his  hand  and  on  the  knife  was  occasioned  by 
his  having,  when  turning  back  the  bed  clothes  to  see 
if  the  deceased  were  really  dead,  dropped  the  knife  on 
the  bleeding  body.  (/£) 

458.  III.  Declarations  of  intention  to  commit 
an  offense,  and  threats  to  commit  it. — Next  to  pre- 
parations and  attempts,  follow  declarations  of  inten- 
tion, and  threats  to  commit  the  offense  which  is  found 
perpetrated.  Most  of  the  infirmative  hypotheses  ap- 
plicable to  the  former,  are  incident  to  those  now 
under  consideration ;  and  these,  besides,  have  some 
which  are  peculiar  to  themselves.  fst.  The  words 
supposed  to  be  declaratory  of  criminal  intention,  may 
have  been  misunderstood,  or  misremembered.  2nd. 
It  does  not  necessarily  follow  because  a  man  avows 
an  intention,  or  threatens  to  commit  a  crime,  that 
such  intention  really  exists  in  his  mind.1  The  words 
may  have  been  uttered  through  bravado,  or  with  the 
view  of  annoying,  intimidating,  extorting  money,  or 
for  some  other  collateral  object.  3rd.  Besides,  another 
person  really  desirous  of  committing  the  offense,  may 
have   profited  by  the  occasion  of  the  threat  to  avert 

(K)  Theory  of  Pres.  Proof,  Append.  Case  7. 

1  So  in  the  Park  man- Webster  Case,  the  former's  life  had 
been  repeatedly  threatened  by  irritated  tenants,  yet  he  was 
finally  murdered  by  one  who  had  used  none.  See  Webster 
Case,  ante.  vol.  L  note,  p.  t>33- 


PRESUMPTIVE    EVIDENCE.  7yy 

suspicion  from  himself.  (/)  4th.  It  must  be  remem- 
bered that  a  threat  or  declaration  of  this  nature  tends 
to  frustrate  its  own  accomplishment  By  theatening 
a  man  you  put  him  upon  his  guard,  and  force  him  to 
have  recourse  to  such  means  of  protection  as  the  law, 
or  any  extra  judicial  powers  which  he  may  have  at 
command,  may  be  capable  of  affording  to  him.  (;;/) 
"  Still,  however,"  as  has  been  judiciously  observed, 
"  by  the  testimony  of  experience,  criminal  threats  are 
but  too  often,  sooner  or  later  realized.  To  the  inten- 
tion of  producing  the  terror,  and  nothing  but  the 
terror,  succeeds,  under  favor  of  some  special  oppor- 
tunity, or  under  the  spur  of  some  fresh  provocation, 
the  intention  of  producing  the  mischief;  and  (in  pur- 
suance of  that  intention)  the  mischievous  act."  (11) 
"  Threats,"  observes  a  recent  author,  (0)  "  are  often  dis- 
regarded and  despised  ;  it  is  only  the  more  timid  dis- 
positions that  are  influenced  by  them  ;  and  in  most 
minds,  there  is  an  unwillingness,  even  if  fear  be  felt,  to 
manifest    it    by  any  outward  acts  or  cautionary  pro- 

(/)  A  curious   instance  of  this  is  re-  had  been  committed  by  another  man. 

lated  by  a  very  old  French    authority.  of  whom  he  was  the  accomplice.  That 

A  woman  of  extremely  bad  character,  person  was  immediately  arrested,  and 

one  day,  in  the  open  street,  threatened  confessed   the   whole  truth  as  follows  : 

a  man  who  had  done  something  to  dis-  that  happening   to  be   passing  in    the 

please  her,   that  she  would    "get   his  street  when  the  threat  was  uttered,  he 

hams  cut  across  for  him  before  long."  took   advantage  of  that  circumstance 

A  short  time  afterwards,  he  was  found  to  make  away  with  the  murdered  man, 

dead,   with  his   hams  cut   across,   and  will    assured    that    the    woman's    bad 

several   other  wounds.      This  was    of  character    would    immediately    direct 

course    sufficient    to    excite    suspicion  towards  her  the  attention  of  the  ofh- 

against   the   female,  who,  according  to  cers  of  justice.     Papon,  Arrests,  Liv, 

the  practice  of  continental  tribunals  at  24,  tit.  8,  arrest  1  ;  cited,  not  very  ac- 

that  time,  was  put  to  the  torture,  con-  curately,  in  the  Causes    Celebrex,  voL 

fessed   the  crime,    and  was   executed.  5,    p.    437,    Ed.   Richer,    Amsterdam, 

Shortly    afterwards,   however,   a    man  1773. 

who  had  been  taken  into  custody    for  (w)  3  Benth.  Jud.  Ev.  78. 

some  other  offense,  declared  that  she  («)  Id. 

was    innocent,  and    that  the   murder  (0)  Burrill,  Circ.  Ev.  342. 


*;8      SECONDARY    RULES     OF    EVIDENCE. 

ceedings.  To  this  contempt  of  the  mere  language  ol 
an  enemy,  and  the  exposure  of  person  which  has  fol- 
lowed, have  many  courageous  persons  notoriously 
owed  their  deaths.  And  it  may  be  that  the  threat- 
ener,  in  these  cases,  has  counted  in  advance,  upon  this 
very  circumstance."  l 

459.  IV.  Change  of  life  or  circumstances. — 
Having  examined  the  probative  force  of  criminative 
facts  existing  before,  though  perhaps  not  discovered 
until  after  the  perpetration  of  the  offense,  we  proceed 
to  consider  those  occurring  subsequent  to  it.  Among 
these  the  first  that  naturally  presents  itself  to  notice, 
is  a  change  of  life  or  circumstances,  not  easily  capable 
of  explanation,  except  on  the  hypothesis  of  the  pos- 
session of  the  fruits  of  crime ;  as,  for  instance,  where 
shortly  after  a  larceny  or  robbery,  or  the  suspicious 
death  or  disappearance  of  a  person  in  good  circum- 
stances, a  person  previously  poor  is  found  in  the  pos- 
session of  considerable  wealth  ;  (/)  and  the  like.  The 
civil  law  held,  that  the  suddenly  becoming  rich  was 
not  even  prima  facie  evidence  of  dishonesty  against  a 
guardian  ;  (.7)  and  in  our  criminal  courts  it  is  not, 
when  standing  alone,  any  ground  for  putting  a  party 
on  his  defense,  (r) 

460.  V.  Evasion  of  justice. — By  "Evasion  of 
justice  "  is  meant  the  doing  some  act  indicative  of  a 
desire  to  avoid,  or  stifle  judicial  inquiry  into  an  offense, 
of  which  the  party  doing  the  act  is  accused  or  sus- 
pected.    Such  desire  may  be  evidenced  by  his  flying 

(/)  See   Burdock's  Case,  Appendix,  (g)  Cod.  lib.  5,  tit.  51,  1.  10. 

No.  1,  Case  2.  (>-)  2  Ev.  Poth.  345. 

1  The  evidence  arising  from  threats  is  to  be  used  with  great 
caution.  See  Jin:  v.  State,  5  Humph.  146;  Commonwealth  v. 
Burgess,  2  Va.  Cas.  484;  Commonwealth  v.  Smith,  7  Smith's 
Laws,  697  ;  Resp.  v.  Mulatto  Bob,  4  Dallas,  146. 


PRESUMPTIVE     EVIDENCE.  779 

from  the  country  or  neighbornood  ;  removing  himself, 
his  family,  or  his  goods  to  another  place  ;  keeping  con- 
cealed, &c.  To  these  must  be  added  the  kindred  acts 
of  bribing  or  tampering  with  officers  of  justice/to*  in- 
duce them  to  permit  escape,  suppress  evidence,  &c. 
All  these  afford  a  presumption  of  guilt,  more  or  less 
cogent,  according  to  circumstances. 

461.  The  fact  that  about  the  time  of  the  commis- 
sion of  an  offense,  a  person  accused  or  suspected  of  it 
left  the  country,  changed  his  home,  &c,  is  only  pre- 
sumptive evidence  of  an  intention  to  escape  being 
rendered  amenable  to  justice  for  that  offense — a  man 
may  change  his  abode  for  health,  business,  or  pleasure. 
In  order  to  estimate  the  weight  due  to  this  presump- 
tion, it  is  most  important  to  inquire  into  the  party's 
general  mode  of  life.  In  the  case  of  a  mariner,  carper, 
itinerant  vender,  or  itinerant  handicraft,  the  inference 
of  guilt  from  change  of  place  might  amount  to  little 
or  nothing,  (s)  Moreover,  the  object  in  absconding 
might  be  to  avoid  civil  process,  or  inquiry  into  some 
other  offense.  (J) 

462.  But  even  the  clearest  proof,  that  the  accused 
absented  himself  to  avoid  the  actual  charge  against 
him,  although  a  strong  circumstance,  is  by  no  means 
conclusive  evidence  of  guilt.  Many  men  are  naturally 
of  weak  nerve,  and  under  certain  circumstances,  the 
most  innocent  person  may  deem  a  trial  too  great  a 
risk  to  encounter.  He  may  be  aware  that  a  number 
of  suspicious,  though,  inconclusive  facts,  will  be  ad- 
duced in  evidence  against  him  ;  he  may  feel  his 
inability  to  procure  legal  advice  to  conduct  his  de 
fense,  or  to  bring  witnesses  from  a  distance  to  establish 
it ;  he  may  be  fully  assured  that   powerful  or  wealthy 

(s)  3  Benth.  Jud.  Ev.  176.  (if)  Id.  180. 


/So      SECONDARY    RULES    OF    EVIDENCE. 

individuals   have   resolved    on    his   ruin,  or  that  wit- 
nesses  have    been   suborned  to    bear  false  testimony 
against  him.     Add  to  all  this  that,  even  under  the  best 
regulated  judicial  system,  more  or  less  vexation  must 
necessarily  be    experienced    by   all   persons  who   are 
made  the  subject  of  criminal  charges,  which  vexation 
it  may  have  been  the  object  of  the  party  to  elude  by 
concealment,  with  theintention  of  surrendering;  himself 
into  the  hands  of  justice  when  the  time  for  trial  should 
arrive,  (u)     These  considerations  are  entitled  to  weight 
at  all  times,  and  in  all  places  ;  but  in  addition  to  them 
the  nature  and  character  of  the  tribunal  before  which, 
and   of  the  administration  of  justice  in  the  country 
where   the   trial   is  to   take  place,  must  never  be  lost 
sight  of.     To    say  nothing  of  those  cases  where  the 
tribunal  lies  under  just  suspicion,  or  positive  corruption, 
partiality,  or   prejudice,   the    principles    on    which    it 
avowedly    acts    may    in    themselves    be   sufficient    to 
deter  any  man  from  voluntarily  placing  himself  in   its 
power.     In  the   case,  for  instance,  of  those  tribunals 
which  act  on  the  maxims,  "  In   atrocissimis  leviores 
conjecturae  sufficiunt,  et  licet  judici  jura  transgrendi :  " 
(x)     "  Hsereseos   suspectus,  tanquam    haereticus    con- 
demnatur,  nisi   omnem   suspicionem  excusserit ; "  (jj/) 
or  of  others  which,  on  slight  evidence,  would,  in  order 
to  extract  confession,  torture  a  suspected   man   so  as 
perhaps  to  disable  him  for  life  ;  (z)  or  of  others  acting 

(«)  For    the  purpose   of  computing  places  where  there  is  no  winter  assize, 

the  average  duration  of  a  penal  suit  in  a   party  committed   in  the    month  of 

France,  the  thirty  volumes,  in  closely  September  for  a  serious    felony,  can 

printed  121110,  of  the  Causes  Celebres  not  be  tried  until  the  following  Feb- 

were  examined.     It  was  not   in   every  ruary  or  March, 
instance  that  the  duration  of  the  suit  (x)  Introd.  pt.  2,  §  49,  note  (</). 

could  be  ascertained  :  but,  in  those  in  (;<)  Devot.  Inst.  Canon,  liu.  3,   tit. 

which  it   could,  the   average   duration  9,  £  31,  Ed.  18^2. 

turned  out   to  be  six  years.     (3  Benth.  See  Introd.  pt.  2,  §   70,  note  (/), 

|ud.    Ev.    174.)      In    this   country,   in  ai.->o   §   69,    and    any   treatise    on    tha 


PRESUMPTIVE    EVIDENCE.  781 

on  the  principle  laid  down  by  certain  eminent  moral" 
ists,  that  it  is  justifiable  to  deliver  up  to  capital  pun- 
ishment individuals  whose  guilt  is  not  indisputably 
proved,  on  the  ground  that  those  who  fall  by  a  mis 
taken  sentence  may  be  considered  as  falling  for  their 
country,  {a) — is  it  matter  of  wonder  that  innocent 
persons  should  fly  to  avoid  the  impending  danger? 
Would  it  not  be  more  surprising  to  find  any  waiting 
to  meet  the  course  of  justice  ?  (7>) 

463.  But  there  are  other  considerations,  indepen- 
dent of  tribunals  or  their  practice,  which  might  power- 
fully influence  a  man  to  seek  to  avoid  being  tried  for 
a  suspected  crime.  The  case  may  have  attracted  much 
public  attention,  and  a  strong  popular  feeling  may 
prevail  against  the  supposed  criminal.  And  here  the 
occasional  misconduct  of  the  public  press  must  not  be 
overlooked.  When  facts  have  come  to  light,  indicating 
the  probable  commission  of  some  crime  conspicuous 
for  its  peculiarity  or  atrocity,  the  press  of  this  country 
has  too  often  forgotten  the  honorable  position  it  ought 
to  occupy,  and  the  fearful  responsibility  consequent 
on  the  abuse  of  its  power.  Under  color  of  a  horror  of 
the  crime,  but  more  probably  with  the  view  of  pander- 
ing to  excited  curiosity  and  morbid  feeling,  a  course 
has  been  taken,  calculated  to  deprive  of  all  chance  of 
a  fair  trial,  the  unfortunate  individual  who  was  sus- 
pected of  it.  For  weeks  or  months  previous,  his  con- 
duct and  character  have  been  made  the  continual  sub- 
ject of  condemnatory  discussion  in  the  public  prints 
and  in  all  places  within  the  sphere  of  their  influence. 

practice    of   the  civil   law  in   criminal  where  he  lived,  is  presented  by   the 

cases.  declaration  of  the  French  lawyer,  that 

(a)  See  Intron.  pt.  2,  §  49,  note  {(j).  he  would  fly  if  accused  of  stealing  the 

(b)  What   a  picture   of  the  state   of  steeples    of   Notre    Dame !    3    Benth, 
criminal    procedure     in     the     country  Jud.  Ev.  175. 


782      SECONDARY    RULES     OF    EVIDENCE. 

Circumstantial  descriptions  of  the  wav  in  which  the 
crime  was  committed,  and  sometimes  actual  delinea- 
tions of  it,  with  the  accused  represented  in  the  very 
act ;  elaborate  histories  of  his  past  life,  in  which  he  has 
been  spoken  of  as  guilty  of  crimes  innumerable  ;  minute 
accounts  of  his  conduct  in  the  retirement  of  his  cell, 
and  while  under  examination  ;  and  expressions  of 
wonder  and  rage,  that  he  has  had  the  audacity  to  with- 
hold a  confession  of  his  guilt,  have  been  daily  and 
hourly  poured  forth.  In  one  case,  while  certain  parties 
were  awaiting  their  trial  for  murder,  the  whole  scene 
of  the  murder,  of  which,  of  course,  they  were  assumed 
to  be  the  perpetrators,  was  dramatized,  and  represented 
to  a  metropolitan  audience.  (V)  The  necessary  conse- 
quence was  that  a  firm  belief  of  the  guilt  of  the  accused 
was  imperceptibly  worked  into  the  minds  of  the 
better  portion  of  socrety,  while  the  rest  was  inflamed 
to  the  highest  pitch  of  excitement  and  exasperation 
against  him.  In  the  midst  of  all  this  the  trial  took 
place,  and,  under  such  circumstances,  it  could  be  little 
better  than  a  mockery.  The  judge  and  jury  could 
hardly  be  considered,  even  by  themselves,  as  individuals 
chosen  to  decide  impartially  on  the  guilt  or  innocence 
of  the  accused ;  but  must  rather  have  been  expected 
to  be  formal  registrars  of  a  verdict  of  condemnation, 
already  iniquitously  given  against  him  by  the  commu- 
nity, before  he  was  heard  in  his  defense.  It  is  gratify- 
ing to  be  able  to  add  that  the  misconduct  here  spoken 
of  has,  of  late  years,  been  greatly  on  the  decline. 

464.  We  must  not,  however,  dismiss  this  subject, 

(c)  On    the    7th  of  January,    1824,  The  murder  was  dramatized,  and  the, 

John  Thui  tell  and  Joseph  Hunt  were  piece   played   at    the  Surrey    Theatre 

tried  and  convicted  on  unquestionable  on  the   17th  of  November  preceding 

evidence  for  the   murder  of  William  the  trial 
Weare,  on  the  17th  of  October,  1S23. 


PRESUMPTIVE    EVIDENCE.  783 

without  observing  that  cases  sometimes  occur,  where 
an  offense  is  committed  under  the  prospect  of  impu- 
nity, offered  by  a  change  of  place  resolved  on  from 
other  motives. 

465.  Few  things  distinguish  an  enlightened  from 
a  rude  and  barbarous  system  of  judicature,  more  than 
the  way  in  which  they  deal  with  evidence.  The 
former  weighs  evidence  ;  the  latter,  conscious  perhaps 
of  its  inability  to  do  so  with  effect,  or  careless  of  the 
consequences  of  error,  sometimes  rejects  the  evidence 
altogether,  and  at  others  converts  certain  pieces  of  evi- 
dence into  rules  of  law,  by  investing  them  with  con- 
clusive effect,  merely  because  their  probative  force  has 
in  general  been  found  to  be  considerable.  Our  ances- 
tors, observing  that  guilty  persons  commonly  fled 
from  justice,  adopted  the  hasty  conclusion  that  it  was 
only  the  guilty  who  did  so,  according  to  the  maxim, 
'  Fatetur  facinus  qui  fugit  judicium."  (d)  Under  the 
old  law,  a  man  who  fled  to  avoid  being  tried  for  trea- 
son or  felony,  forfeited  all  his  goods  and  chattels,  even 
though  he  were  acquitted  ;  (e)  and  in  such  cases  the 
jury  were  charged  to  inquire,  not  only  whether  the  ac- 
cused were  guilty  of  the  offense,  but  also  whether  he 
had  fled  for  it,  and  if  so  what  goods  and  chattels  he 
ad.  This  practice  was  not  formally  abolished  until 
he  7  &  8  Geo.  4,  c.  28,  s.  5.  Nor  was  the  notion  pe- 
culiar to  the  English  law.  We  find  traces  of  it  among 
the  earlier  civilians,  who  lay  down,  "  Reus  per  fugam 
sui,  pene   accusator  existit."  (/")     Among   the  later 


(d)  5  Co.  109  b  ;  11  Co.  60  b  ;  Jenk.  that  the  flight  was  a  contempt  of  the 

Cent.  1  Cas.  80.  law,  and  a  substantive  crime  in   itself, 

(<f)  Co.  Litt.  373  a  and  b  ;    5  Co.  109  Plowd.  262  ;  19  Ho.  St.  Tr.  1098. 
b  ;    19  Ho.  St.  Tr.  109S.     According  (/)  Voet.  ad  Pand.  lib.  22,  tit.  3.   n 

to  some   authorities,  indeed,  this    or-  5 ;  Novel.  53,  cap.  4. 
feiture   was   inflicted   on   the  ground 


784      SECONDARY    RULES    OF    EVIDENCE. 

civilians,  (g)  as  well  as  among  ourselves  in  modern 
times,  more  correct  views  have  prevailed ;  and  the 
evasion  of  justice  seems  now  nearly,  if  not  altogether 
reduced  to  its  true  place  in  the  administration  of  the 
criminal  law,  namely,  that  of  a  circumstance — a  fact 
which  it  is  always  of  importance  to  take  into  consid- 
eration ;  and  which,  combined  with  others,  may  supply 
the  most  satisfactory  proof  of  guilt,  although,  like  any 
other  piece  of  presumptive  evidence,  it  is  equally  ab- 
surd and  dangerous  to  invest  with  infallibility. 

466.  VI.  Fear  indicated  by  passive  deportment, 
&c. — The  emotion  of  fear,  indicated  by  passive  deport- 
ment when  a  party  is  accused,  or  perceives  that  he  is 
suspected  of  an  offense,  is  sometimes  relied  on  as  a 
criminative  circumstance.  The  following  pnysical 
systoms  may  be  indicative  of  fear: — "  Blushing,  pale- 
ness, trembling,  fainting,  sweating,  involuntary  evacua- 
tions, weeping,  sighing,  distortions  of  the  Countenance, 
sobbing,  starting,  pacing,  exclamation,  hesitation,  stam- 
mering, faltering  of  the  voice,"  &c. ;  (/£)  and,  as  the 
probative  force  of  each  of  these  depends  on  the  correc- 
ness  of  the  inference,  that  the  symptom  has  been  caused 
by  fear  of  detection  of  the  offense  imputed,  two  classei 
of  infirmative  hypotheses  naturally  present  themselves 
1  st.  The  emotion  of  fear  may  not  be  present  in  the 
mind  of  the  individual.  Several  of  the  above  symp- 
toms are  indicative  of  disease,  and  characteristic  of 
other  emotions,  such  as  surprise,  grief,  anger,  &c.  With 
respect  to  the  first,  for  instance,"  blushing,"  the  flush  of 
fever  and  the  glow  of  insulted  innocence  are  quite  as 
common  as  the  crimson  of  guilt.  2ndly.  The  emotion 
of  fear,  even  if  actually  present,  although  presumptive 


(g )  Mascard.  de  Prob.  Concl.  499  ;      in  loc.  cit. 
Matth.  de  Prob.  cap.    2,  n.  69  ;    Voct.  (k)  3  Bcnth.  Jud.  Ev.  153. 


PRESUMPTIVE    EVIDENCE.  7S5 

s  by  no  means  conclusive  evidence  of  guilt  of  the 
offense  imputed.  The  alarm  may  be  occasioned  by 
the  consciousness  of  another  crime,  committed  either 
by  the  party  himself,  or  by  others  connected  with  him 
by  some  tie  of  sympathy,  on  whom  judicial  inquiry 
may  bring  down  suspicion  or  punishment ;  (7)  or  even 
by  the  recollection  of  a  fact,  in  consequence  of  which, 
without  any  delinquency  at  all,  vexation  has  been,  or 
is  likely  to  be  produced  to  him  or  them,  (k)  So,  the 
apprehension  of  condemnation  and  punishment  though 
innocent,  or  of  vexation  and  annoyance  from  prosecu- 
tion, is  a  circumstance  the  weight  of  which,  like  that 
of  the  evasion  of  justice,  depends  very  considerably  on 
the  character  of  the  tribunal  before  which,  and  the 
forms  of  criminal  procedure  in  the  country  where  the 
trial  is  to  take  place.  (/)  Lastly,  the  rare,  though  no 
doubt  possible,  case  of  the  falsity  of  the  supposed  self- 
criminative  recollection,  (m)  E.  g.  a  habitual  thief  is 
taken  into  custody  for  a  theft ;  that  he  should  show 
systoms  of  fear  is  natural  enough  ;  and  confounding 
one  of  his  exploits  with  another,  he  may  (especially 
if  the  time  of  the  supposed  offense  be  very  remote) 
imagine  himself  to  recollect  a  theft,  in  which,  in  truth, 
he  bore  no  part,  (n) 

Closely  allied  to  this  subject  is  the  inference  of  the 
existence  of  alarm,  and  through  it  of  delinquency,  de- 
rived from  confusion  of  mind  ;  as  expressed  in  the 
countenance,  or  by  discourse,  or  conduct.  (0)  This, 
however,  like  the  former,  is  subject  to  the  infirmative 
hypotheses,  1st.  That  the  alarm  may  be  caused  by  the 
apprehension  of  some  other  crime,  or  some  disagreea- 

(0  Id.  157.  (m)  3  Benth.  Jud.  Ev.  157. 

(&)  Id.  (»)  Id.  158. 

(/)  Supra,  %  46a,  (0)  Id.  149. 
SO 


786     SECONDARY    RULES     OF    EVIDENCE. 

ble  circumstance  coming  to  light ;  (/)  2nd.  Conscious- 
ness on  the  part  of  the  accused  or  suspected  person 
that,  though  innocent,  appearances  are  against  him.  (q) 
467.  VII.  Fear  indicated  by  a  desire  for  secrecy. 
■ — The  presence  of  fear  may  be  evidenced  in  another 
way,  namely,  by  acts  showing  a  desire  for  secrecy ; 
such  as  doing  in  the  dark  what,  but  for  the  criminal 
design,  would  naturally  have  been  done  in  the  light ; 
choosing  a  spot  supposed  to  be  out  of  the  view  of 
others,  for  doing  that  wmich,  but  for  the  criminal  de- 
sign, would  naturally  have  been  done  in  a  place  open 
to  observation  ;  disguising  the  person  ;  taking  meas- 
ures to  remove  witnesses  from  the  scene  of  the  in- 
tended unlawful  action,  &c.  (s)  Acts  such  as  these 
are,  however,  frequently  capable  of  explanation.  1st. 
It  is  perfectly  possible,  that  the  design  of  the  person 
seeking  secrecy  may  be  altogether  innocent,  at  least 
so  far  as  the  criminal  law  is  concerned.  (J)  The  lov- 
ers of  servants,  for  instance,  are  often  mistaken  for 
thieves,  and  vice  versa,  (u)  2ndly.  The  design,  even 
if  criminal,  may  be  criminal  with  a  different  object  and 
of  a  degree  less  culpable  than  that  attributed  ;  (V)  as, 
for  instance,  where  a  man,  with  a  view  of  making 
sport  by  alarming  his  neigbors  dresses  himself  up  to 
pass  for  a  ghost,  (y) 

(/)  There  is  a  well-known  case  of  a  himself  and  her, by  uncovering  enough 

man,  who  being  wrongly  suspected  of  of  her  person  to  indicate  the  sex,  with- 

harboring  a  person  accused  of  a  state  out  betraying  the  individual.     See  3 

crime,   his  house  and   even  his  bed-  Benth.  Jud.  Ev.  151  (note), 

chamber,  as  he  was  lying  in  bed,  were  {q)  3  Benth.  Jud.  Ev.  151. 

searched  by  the  officers  of  justice.  He  (s)  3  Benth.  Jud.  Ev.  160,  16  J. 

had  at   the    moment  in  bed  with  him,  (/)  Id.  162. 

a  female,  whose  reputation  would  have  (t<)  Id. 

been    ruined  by   the   disclosure  ;  and  (x)  3  benth.  Jud.  Ev.  16s. 

confusion,  more  or  less,  he  must  have  {y)  Id.  163. 
betrayed.  His  presence  of  mind  saved 


PRESUMPTIVE     EVIDENCE.  787 


PARAGRAPH 


General  observatiots  on  the  subject  of  this  section     ....  468 

No  form  of  judicial  evidence  is  infallible  .  .  468 

Fallacy  of  the  maxim, "  Facts  can  not  lie"  .....  469 

Cautions  to  tribunals  respecting  presumptive  evidence      .         .         .  470 

Superstitious    notions 471 

468.  The  subject  of  the  present  section  may  fairly 
be  termed  the  Romance  of  Jurisprudence,  and  is  in- 
deed one  of  the  few  parts  of  that  matter-of-fact 
science  in  which  it  becomes  necessary,  under  penalty 
of  the  gravest  consequences,  to  guard  against  illusions 
of  the  imagination.  Unfortunately  for  the  interests 
of  society,  the  true  principles  on  which  presumptive 
evidence  rests,  have  not  always  been  understood  or 
adverted  to  by  those  entrusted  with  power  ;  and  the 
judicial  histories  of  every  country  supply  melancholy 
instances,  where  the  safety  of  individuals  has  been 
sacrificed  to  the  ignorance,  haste,  or  misdirected  zeal 
of  judges  and  jurymen  dealing  with  this  mode  of 
proof.  The  consequence  has  been  that  a  prejudice  has 
arisen  against  it,  so  that  a  declaration  on  the  dangers 
of  convicting  on  presumptive  evidence,  is  ever  sure  of 
the  ready  ear  of  a  popular  assembly.  Viewed  either 
in  a  legislative  or  professional  light,  such  an  argument 
is  scarcely  deserving  serious  refutation.  No  form  of 
judicial  evidence  is  infallible — however  strong  in  it- 
self, the  degree  of  assurance  resulting  from  it  amounts 
only  to  an  indefinitely  high  degree  of  probability  ;  (z) 
and  perhaps  as  many  erroneous  condemnations  have 
taken  place  on  false  or  mistaken  direct  testimony,  as 
on  presumptive  proof,  (a)     Indeed,  the  most  unhappy 

(z)  See   Introd.  pt.  I,  £§  7   and  27  ;  origin  in  willful  falsehood.     The  most 

bk.  1,  pt.  I,  §  95.  heinous  offenses,  murder  not  excepted, 

(a)  For  cases   of  mistaken    identity,  have  occasionally  been  committed  with 

see  infra,  ch.  6.      On  the  other  hand,  the  view  of  afterwards  accusing   inno- 

every  one  must  be  aware,   positive  cent  persons  of  them,  in  order  to  ob- 

testimony    frequently   has    its  tain  a  reward  held  out  for  the  convic- 


788      SECONDARY    RULES    OF    EVIDENCE. 

instai  ces  are  those  where  the  tribunal  has  been  de- 
ceived by  suspicious  circumstances,  casual  or  forged, 
coupled  with  false  direct  testimony  ;  for  in  such  cases 
the  two  species  of  evidence  (though  each  is  fallacious 
in  itself)  prop  up  each  other.  And,  as  in  the  most 
important  transactions  of  life,  in  all  the  moral,  and 
most  of  the  physical  sciences,  we  are  compelled  to 
rely  almost  exclusively  on  probable  or  presumptive 
reasoning,  (b)  it  seems  difficult  to  suggest  why  a 
higher  degree  of  assurance  should  be  required  in 
judicial  investigations,  even  were  such  assurance  at- 
tainable. 

469.  But  while  we  condemn  this,  perhaps  not 
unnatural  error,  what  must  be  said  of  one  of  an 
opposite  kind,  infinitely ,  more  mischievous  because 
promulgated  by  authority  which  we  are  bound  to 
respect, — namely,  the  setting  presumptive  evidence 
above  all  other  modes  of  proof,  and  investing  it 
with  infallibility?  Juries  have  been  told  from  the 
bench,  even  in  capital  cases,  that  "  where  a  violent 
presumption  necessarily  arises  from  circumstances, 
they  are  more  convincing  and  satisfactory  than  any 
other  kind  of  evidence,  because  facts  can  not  lie."  (V) 
Numerous  remarks  might  be  made  on  this  strange 
dogma ;  the  first  of  which  that  presents  itself  is,  that 
the  moment  we  talk  of  anything  following  as  a 
necessary    consequence  from    others,  all    idea  of  pre- 

tion  of  offenders.     At  Dublin,  in  Jan-  See   also,  per  Buller,  J.,  in  Donellan's 

uary,    18. |2,   one  John    Delahunt   was  Case,  Warwick  Sp.  Ass.  1781.  Report 

convicted  and  executed  for  an  offense  by    Gurney  ;  per   Mounteney,   B.,   in 

of  this   nature.     See   also   R.   v.    Mc-  Annesley  v.  Earl  of  Anglesea,  17  Ho. 

Daniel  and  others,  O.  B.  Sess.    1755,  St.    Tr.    1430  ;  Gilb.    Evid.    157,   4th 

reported  in  Foster's  C.  L.  121.  Ed.  ;  Paley's  Moral  and  Political  Thi- 

(6)  Locke   on    the    Human   Under-  losophy,  bk.  6,  ch.  9  ;  and  the  Works 

standing,  bk.  4,  ch.  14.  of  Chancellor  D'Aguesseau,  torn.   12. 

(c)  Per   Legge,    B.,  in    the   case   of  p.  647. 
Mary    Blandy,   18   Ho.  St.  Tr.   11S7. 


PRESUMPTIVE    EVIDENCE.  789 

surnptive  reasoning  is  at  an  end.  (d)  Secondly, 
that  even  assuming  the  truth  of  the  assertion  that 
facts  or  circumstances  can  not  lie,  still  so  long  as  wit- 
nesses and  documents,  by  which  the  existence  of  those 
facts  must  be  established,  (e)  can  lie,  or  even  honestly 
misrepresent,  so  long  will  it  be  impossible  to  arrive  at 
infallible  conclusions  from  circumstantial  evidence. 
But,  without  dwelling  on  these  considerations,  look  at 
the  broad  proposition,  "  Facts  can  not  lie."  Can  they 
not,  indeed  ?  When,  in  order  to  effect  the  ruin  of  a 
poor  servant,  his  box  is  opened  with  a  false  key,  and  a 
quantity  of  goods  stolen  from  his  master  is  deposited 
in  it  ;  or,  where  a  man  is  found  dead,  with  a  bloody 
weapon  lying  beside  him,  which  is  proved  to  belong 
to  a  person  with  whom  he  has  had  a  quarrel  a  short 
time  before,  and  footmarks  of  that  person  are  traced 
near  the  corpse  ;  but  the  murder  has  in  reality  been 
committed  by  a  third  person  who,  owing  a  spite  to 
both,  put  on  the  shoes  of  one  of  them  and  borrowed 
his  weapon  to  kill  the  other,  do  not  the  circumstances 
lie — wickedly,  cruelly  lie.  (/")  There  is  every  reason 
to  fear  that  a  blind  reliance  on  the  dictum,  "  F^cts  can 
not  lie,"  has  occasionally  exercised  a  misi  hievious 
effect  in  the  administration  of  justice. 

470.  In  dealing  with  judicial  evidence  of  all 
kinds,  ignorance  dogmatizes,  science  theorizes,  sense 
judges.  The  right  application  of  presumptive,  as  of 
other  species  of  evidence,  depends  on  the  intelligence, 

(d)  See  supra,  §  468.  bres,  444,  Ed.  Richer,  Amsterd.  1773  ', 

(e)  Domat,  Lois  Civiles,  pt.  1,  liv.  3,  and  supra,  bk.  2,  pt.  2,  on  Real  Evi- 
tit.  6,  Preamb  ;  Theory  of  Presump-  dence.  See  also  the  story  narrated  by 
tive  Proof,  pp.  23  and  28.  Cicero,  de   Inv.  lib.  2,  s.  4,  cited  Ram 

(/)  A  bad  case   of  this   latter  kind  on  Facts,  97,  and  the   quotation   from 

is  given  in  the  Theory  of  Presumptive  Cymbeline  in   Goodeve  on   Evident* 

Proof.  Append.  Case  10.    See  also  the  43-4. 
case   cf  Adiien   Doue,  5  Causes  Cele- 


;qo      SECONDARY    RULES    OF    EVIDENCE. 

the  honesty,  and  the  firmness  of  tribunals.  To  con 
vict,  at  least  in  capital  cases,  on  the  strength  of  a 
single  circumstance,  is  always  dangerous;  and  it  has 
been  justly  observed,  that  where  the  criminative  facts 
of  a  presumptive  nature  are  more  numerous,  most 
of  the  erroneous  convictions  which  have  taken  place 
have  arisen  from  relying  too  much  on  general  appear- 
ances, when  no  inchoate  act  approaching  the  crime 
has  been  proved  against  the  accused,  (g) 

47 1.  But  the  stream,  and  even  the  source  of  jus- 
tice, may  be  poisoned  by  causes  irrespective  of  the  im- 
becility of  laws  or  the  errors  of  tribunals.  One  of  these, 
from  the  influence  it  has  frequently  exercised  in  capital 
cases,  and  especially  when  the  proof  against  the  accused 
has  been  presumptive,  deserves  particular  attention. 
We  allude  to  the  prevalence  of  superstitious  notions 
which,  although  much  diminished  by  the  march  of  en- 
lightment  and  civilization,  is  far  from  extinct.  The 
days  are,  it  is  true,  gone  by  when  supernatural  agency 
was  allowed  to  supply  chasms  in  a  chain  of  proof; 
when  persons  were  condemned  to  death  on  the  sup- 
posed testimony    of  apparitions,  (//)  or   because  the 

(g)  Theory  of  Presumptive    Froof,  der  (for   none  had  been  committed  in 

58,  59.  reality,  the  deceased  having  accident- 

(k)  At  a  trial  in  1754,  for  murder,  ally  fallen  into  a  deep  privy,  where  no 
before  the  Court  of  Justiciary  in  Scot-  one  thought  of  looking  for  him),  was 
land,  two  witnesses  were  allowed  to  haunted,  and  that  the  ghost  of  the  de- 
swear  to  their  having  seen  a  ghost  or  ceased  had  appeared  to  an  old  man 
spirit,  which  they  5aid  had  told  them  and  denounced  Miles  as  his  murderer. 
where  the  body  was  to  be  found,  and  Theory  of  Presumptive  Proof,  Ap- 
that  the  pannels  (i.  e.,  the  accused)  pend.  Case  5.  In  the  American  case 
were  the  murderers.  Burnett's  Crim.  of  the  Booms,  likewise,  so  lave  as 
Law  of  Scotland,  529.  See,  also,  the  1S19,  it  is  mentioned  that  a  person  re- 
unfortunate  case  of  John  Miles,  who,  peatedly  dreamed  of  the  murder,  with 
in  some  degree  at  least,  owed  his  con-  great  minuteness  of  circumstance, 
viction  for  the  murder  of  his  friend,  both  in  regard  to  the  death  and  the 
William  Ridley,  to  the  reports  spread  concealment  of  the  remains  ;  Lai  the 
through  the  neighborhood  that  the  innocence  of  the  prisoners  was  fully 
house,  the  ;cene  of  the  supposed  mur-  established  by  the   appearance  of  the 


PRESUMPTIVE    EVIDENCE.  791 

corpse  bled  at  their  touch  ;  (z")  but  the  spirit  of  super- 
stition is  ever  the  same.  There  is  a  notion  still  very 
prevalent  among  the  lower  orders  of  society  (though 
not  by  any  means  confined  to  them),  that  no  person 
would  venture  to  die  with  a  lie  in  his  mouth  ;  and 
consequently,  that  when  a  criminal  awaiting  his  exe- 
cution, especially  a  criminal  who  evinces  religious  feel- 
ing, makes  a  solemn  protestation  of  his  innocence,  no 
alternative  remains  but  to  believe  him,  and  that  the 
tribunal  by  which  he  was  condemned  was  either  cor- 
rupt or  mistaken.  It  is  difficult  to  imagine  a  fallacy 
more  dangerous  to  the  peace  of  society  than  this. 
Conceding  that  such  protestations  are  always  deserving 
of  attention  from  the  executive,  what  is  there  to  invest 
them  with  any  conclusive  effect,  in  opposition  to  a 
chain  of  presumptive  evidence,  the  force  of  which  falls 
short  only  of  mathematical  demonstration  ?  The 
criminal,  it  is  argued,  is  standing  on  the  confines  of  a 
future  world.  True ;  but  perhaps  he  does  not  believe 
in  its  existence.     Take,  however,  the  strongest  case 

party  supposed  to  have  been  murdered.  taken  out  of  the  grave  and  laid  on  the 

I  Greenl.  Ev.  §  214,  note  (2),  7th   Ed.  grass,  thirty  days  after  death,  and  one 

(i)  Huberus,  Prael.  Jur.  Civ.  lib.  22,  of  the   parties   required    to    touch    it, 

tit.  3,  n.  15,   when   speaking   of  slight  "the  brow   of  the   dead,  which  before 

presumptions,  says  :  "  Hue  etiam  per-  was  of  a  livid  and  carrion  color,  began 

tinet  fama  sive    rumor,  et   fuga    item  to  have  a  dew,  or  gentle   sweat,   arise 

fluxus  sanguinis  e  cadavere,  ad  alicujus  on  it,  which  increased  by  degrees,  till 

praesentiam,  respectu  caedis.      Id  enim  the   sweat  ran   down  in  drops  on   the 

ut  aliquando  dederit  occasionem  homi-  face  ;  the  brow  turned  to  a  lively  and 

cidae   detegendi,   ita  ssepe  aliis  causis,  fresh  color,  and   the  deceased   opened 

licet  occultis,  evenisse,  legilur."      See  one   of  her  eyes,  and   shut  it   again  ; 

also    Burnett,     ubi    supra.      In     this  and    this   opening   the  eye   was    <.U>u<i 

country,  in  the  case  of  Mary  Norkott  three    several    times    ;    she    likewise 

and  others,  who  were  tried  at  the  bar  thrust  out  the  ring  or  marriage   ringer 

of    the  King's   Bench,  in  the  4  Car.  I.  three   times,   and   pulled   it  in    again  ; 

(1628-9),  on  an  appeal   of  the   murder  and    the   finger  dropped  blood  from  it 

of  Jane   Norkott,  wife   of  one  of  the  on    the   grass."     14    Ho.  St.  Tr.  1324, 

accused,    two    respectable    clergymen  reported  by  Serjeant  Maynard. 

swore  that,    the    body    having    been  (/t)  See  infra,  chap   7 


792      SECONDARY    RULES     OF    EVIDENCE. 

Suppose  his  faith  undoubted,  that  he  has  attended 
most  assiduously  to  every  religious  duty,  and  displayed, 
up  to  the  very  moment  of  execution,  a  becoming  sense 
of  contrition  for  past  offenses  in  general ;  but  that  he 
solemnly  declares  his  innocence  of  the  crime  for  which 
he  is  about  to  suffer, — must  he  necessarily  be  believed  ? 
Is  there  nothing  else  to  be  taken  into  consideration  ? 
He  -reflects  on  the  obloquy  which  an  avowai  of  his 
guilt  will  bring  on  his  family  and  connections,  that  its 
effect  will  be  to  expose  them  to  the  finger  of  scorn  for 
generations  to  come,  or,  perhaps,  to  reduce  them  to 
poverty,  or  drive  them  to  self-expatriation.  With  all 
this  present  to  his  mind  we  need  not  be  astonished  if 
a  criminal,  whose  notions  of  morality  were  perhaps 
never  very  clear,  should,  particularly  when  regard  for 
his  own  memory  is  taken  into  the  account,  delude 
himself  into  the  belief  that  a  false  protestation  of  inno- 
cence, made  to  avert  so  much  evil,  is  an  offense  of  an 
extremely  venial  nature,  if  not  an  act  deserving  positive 
approbation.  We  must  not  forget  the  position  in  life 
and  the  character  of  the  persons  who  commonly 
make  these  protestations,  or  expect  them  to  see  with 
the  eyes  of  philosophy,  the  extent  of  the  mischief 
which  will  inevitably  result  from  a  conviction  in  the 
public  mind,  that  an  innocent  man  has  been  sacrificed 
by  a  corrupt  or  mistaken  sentence.  The  immediate 
benefits  to  themselves,  their  families  or  neighbors 
forms  the  boundary  line  of  their  vision,  while  the  great 
interests  of  society  are  lost  in  a  distant  horizon.  The 
judicial  histories  of  all  countries  furnish  examples  of 
the  most  solemn  denunciations  of  the  unjustness  of 
the  court,  or  the  perjury  of  the  witnesses  against  them, 
made  by  criminals  the  blackness  of  whose  deeds  and 
the  justice  of  whose  condemnation  no  rational  being 
could  doubt,  and  when  we  rec  llect  the  numerous  in- 


PRESUMPTIVE    EVIDENCE.  793 

stances  which  have  occurred  of  persons  making  ground- 
less confession  of  guilt,  (/£)  we  shall  cease  to  be  sur 
prised  at  false  asseverations  of  innocence. 

(a)  See  infra,  chap.  7. 


94  PRIMA  RY  AND  SECOND  A  RY  E  VIDE  NCR. 


CHAPTER  III. 

PRIMARY    AND    SECONDARY    EVIDENCE. 

PARAGRAPH 

Primary  and   Secondary  evidence.         .         ......  47a 

General  rule — Secondary  evidence  not  receivable  until  the  non-produc- 
tion of  the  primary  is  accounted  for    .         .         .         .         .         .  473 

Whether  this  principle  extends  to  evidence  extra  causam  ?         .  473 

Answers  of  the  judges  in  Queen  Caroline's  case         .         .         .  473 

Examination  of  them      .......  474-78 

Resolutions  of  the  judges  under  6  &  7  Will.  4,  c.  114        .          .  479 

Practice  since  those  resolutions       .....  4S0 

Common  Law  Procedure  Act,  1854 — 17  &  18  Vict.  c.  125,  ss.  24, 

103 481 

28  Vict.  c.  18,  ss.  1,  5 481 

Secondary  evidence 4S2 

1.  When    admissible 482 

2.  Nature   of •-        .         .  483 

No  degrees  of   .                                   ......  483 

Exceptions  to  the  rule  requiring  primary  evidence      ....  4S4 

1.  Where  production  physically  impossible     .....  484 

2.  Where  production  highly  inconvenient  on  physical  grounds     .  484 

3.  Where   production    highly    inconvenient    on    moral    grounds 

— Public    documents         ........  485 

Different  sorts  of  copies  used  for  proof  of  documents       .         .  486 

Proof    of   public  documents         .         .         .         .          .         .         .  487 

14  &  15  Vict.  c.  99,  s.  14 487 

Special  modes   of  proof  of  public   documents  provided  by 

Modern  statutes     ........  488 

In   general    cumulative,  not  substitutionary          .         .         .  488 

4.  Appointments  of  public  officers       ......  489 

5.  Examinations  on  the  voir  dire     .......  490 

Circumstantial  evidence   not   affected   by  the  rule  requiring   primary 

evidence  .........          ...  491 

Nor  self-disserving  evidence 491 

472.  The  exaction  of  original  evidence  is  unques- 
tionably one  of  the  most  marked  features  of  English 
law.  (a)  And  in  the  present  chapter  we  propose  to 
consider  the  application  of  this  principle  to  the  proof  ol 

(a)  See  Introd.  pt.  1,  §  29,  and  bk.  1,  pt.  I,  §§  87-9. 


PRESUMPTIVE    EVIDENCE.  795 

instruments  and  documents,  which  are  sufficiently  iden- 
tified by  description,  and  proximate  to  the  issues 
raised,  to  be  at  least  prima  facie  receivable  in  evidence. 
Such  are  said  to  be  the  "  Primary  evidence  "  of  their 
own  contents ;  and  the  term  "  Secondary  evidence " 
is  used  to  designate  any  derivative  proof  of  them  ;  such 
as  memorials,  copies,  abstracts,  recollections  of  per- 
sons who  have  read  them,  &c.  It  is  a  general  and 
well-known  rule,  that  no  secondary  evidence  of  a 
document  can  be  received  until  an  excuse,  such  as  the 
law  deems  sufficient,  is  given  for  the  non-production 
of  the  primary.  Whether  a  proper  foundation  has 
been  laid  for  the  admission  of  secondary  evidence,  is 
to  be  determined  by  the  judge,  and  if  this  depends  on 
a  disputed  question  of  fact,  he  must  decide  it.  (6) 

473.  And  here  a  question  presents  itself  which  is 
alike  important  and  embarrassing — is  this  principle 
confined  to  evidence  in  causa,  or  does  it  extend  to 
evidence  extra  causam  ?  The  following  questions  were 
put  by  the  House  of  Lords,  and  the  following  answers 
given  by  the  judges  during  the  proceedings  against 
Queen  Caroline,  in  1820:  (V) '  "  First,  whether,  in  the 
courts  below,  a  party,  on  cross-examination,  would  be 
allowed  to  represent  in  the  statement  of  a  question,  the 
contents  of  a  letter,  and  to  ask  the  witness,  whethei 
the  witness  wrote  a  letter  to  any  person  with  such 
contents,  or  contents  to  the  like  effect,  without  having 
first  shown  to  the  witness  the  letter,  and  having  asked 
that  witness,  whether  the  witness  wrote  that  letter, 
and  his  admitting  that  he  wrote  such  letter?"2    "  Sec- 

(6)  Supra,  bk.  I,  pt.    I,   §  82  ;  Har-      Elmes  v.  Ogle,  15  Jur.  180. 
vey   v.    Mitchell,   2   Moo.  &    R.  366  ;  (<r)  2  B.  &  B.  286-291. 

1  Causes  Celebres.     Trial  of  Queen  Caroline,  N.  Y.,  James 
Cockroft  &  Co.,  1874,  vol.  i.  p.  368. 
"Id. 


796   PRIMARY  AND  SECONDARY  EVILENCE. 

ondly,  Whether,  when  a  letter  is  produced  in  the 
courts  below,  the  court  would  allow  a  witness  to  be 
asked,  upon  showing  the  witness  only  a  part  of,  or 
one  or  more  lines  of  such  letter  and  not  the  whole  of 
it,  whether  he  wrote  such  part  or  such  one  or  moie 
lines ;  and,  in  case  the  witness  shall  not  admit  that  he 
did  or  did  not  write  the  same,  the  witness  can  be  ex 
amined  as  to  the  contents  of  such  letter?"1  "Thirdly, 
Whether,  when  a  witness  is  cross-examined,  and,  upon 
the  production  of  a  letter  to  the  witness  under  cross- 
examination,  the  witness  admits  that  he  wrote  that 
letter,  the  witness  can  be  examined  in  the  courts 
below,  whether  he  did  not,  in  such  letter,  make  state- 
ments such  as  the  counsel  shall,  by  questions  addressed 
to  the  witness,  inquire  are  or  are  not  made  therein  ; 
or  whether  the  letter  itself  must  be  read  as  the  evi- 
dence to  manifest  that  such  statements  are  or  are  not 
contained  therein  ;  and  in  what  stage  of  the  proceed- 
ings, according  to  the  practice  of  the  courts  below, 
such  letter  could  be  required  by  counsel  to  be  read,  or 
be  permitted  by  the  court  below  to  be  read  ?  " 2  The 
first  of  these  questions  the  judges  answered  in  the 
negative  ;  on  the  ground  that  "  The  contents  of  every 
written  paper  are,  according  to  the  ordinary  and  well 
established  rules  of  evidence,  to  be  proved  by  the 
paper  itself,  and  by  that  alone,  if  the  paper  be  in  exist- 
ence ;  the  proper  course,  therefore,  is  to  ask  the  wit- 
ness, whether  or  no  that  letter  is  of  the  handwriting  of 
the  witness.  If  the  witness  admits  that  it  is  of  his  or 
her  handwriting,  the  cross-examining  counsel  may,  at 
his  proper  season,  read  that  letter  as  evidence,  and, 
when    the  letter  is  produced,  then    the  whole  of  the 

1  Causes  Celeb/es.     Trial  of  Queen  Caroline,  N.  Y.,  James 
Cockroft  &  Co.,  1874,  vol.  i.  p.  369. 
3  Id.  p.  375- 


PRIMARY  AND  SECONDARY  EVIDENCE.   797 

letter  is  made  evidence.  One  of  the  reasons  for  the  rule 
requiring  the  production  of  written  instruments  is,  in 
order  that  the  court  may  be  possessed  of  the  whole.  If 
the  course,  which  is  here  proposed,  should  be  followed, 
the  cross-examining  counsel  may  put  the  court  in  posses- 
sion only  of  a  part  of  the  contents  of  the  written  paper  ; 
and  thus  the  court  may  never  be  in  possession  of  the 
whole,  though  it  may  happen,  that  the  whole,  if  pro- 
duced, may  have  an  effect  very  different  from  that  which 
might  be  produced  by  a  statement  of  a  part."  The 
first  part  of  the  second  question,  namely,  "  Whether, 
when  a  letter  is  produced  in  the  courts  below,  the 
court  would  allow  a  witness  to  be  asked,  upon  showing 
the  witness  only  a  part  of  one  or  more  lines  of  such 
letter,  and  not  the  whole  of  it,  whether  he  wrote  such 
part  ? "  the  judges  thought  should  be  answered  by  them 
in  the  affirmative  in  that  form  ;2  but  to  the  latter,  "  and 
in  case  the  witness  shall  not  admit  that  he  did  or  did 
not  write  such  part,  whether  he  can  be  examined  as  to 
the  contents  of  such  letter,"  they  answered  in  the  nega- 
tive, for  the  reasons  already  given,  namely,  that  the 
paper  itself  is  to  be  produced,  in  order  that  the  whole 
may  be  seen,  and  the  one  part  explained  by  the  other.3 
To  the  first  part  of  the  third  question  Lord  Chief 
Justice  Abbot  answered  as  follows  : 4  "  The  judges 
are  of  opinion,  in  the  case  propounded,  that  the 
counsel  can  not,  by  questions  addressed  to  the  witness, 
inquire  whether  or  no  such  statements  are  contained  in 
the  letter;  but,  that  the  letter  itself  must  be  read  to 
manifest  whether  such  statements  are  or  are  not  con- 

1  Causes  Celebres.     Trial  of  Queen  Caroline,  N.  Y.,  James 
Cockcroft  &  Co.,  1874,  vol.  i.  p.  369. 
■  Id.  p.  370. 
'  Id. 
4  Id   p.  376. 


7q3      SECONDARY    RULES     OF    EVIDENCE. 

tained  in  that  letter.  In  delivering  this  opinion  to  your 
lordships,  the  judges  do  not  conceive  that  they  are 
presuming  to  offer  to  your  lordships  any  new  rule  of 
evidence,  now,  for  the  first  time,  introduced  by  them  ; 
but,  that  they  found  their  opinions  upon  what,  in  their 
judgment,  is  a  rule  of  evidence  as  old  as  any  part  of  the 
common  law  of  England,  namely,  that  the  contents  of 
a  written  instrument,  if  it  be  in  existence,  are  to  be 
proved  by  that  instrument  itself,  and  not  by  parol  evi- 
dence." To  the  latter  part  of  the  question  he  returned 
for  answer,  "  the  judges  are  of  opinion,  according  to  the 
ordinary  rule  of  proceeding  in  the  courts  below,  the 
letter  is  to  be  read  as  the  evidence  of  the  cross-exam- 
ining counsel,  as  part  of  his  evidence  in  his  turn, 
after  he  shall  have  opened  his  case ;  that  that  is  the 
ordinary  course ;  but  that,  if  the  counsel  who  is  cross- 
examining,  suggests  to  the  court  that  he  wishes  to 
have  the  letter  read  immediately,  in  order  that  he  may, 
after  the  contents  of  that  letter  shall  have  been  made 
known  to  the  court,  found  certain  questions  upon  the 
contents  of  that  letter,  to  be  propounded  to  the  wit- 
ness, which  could  not  well  or  effectually  be  done  with- 
out reading  the  letter  itself,  that  becomes  an  excepted 
case  in  the  courts  below,  and  for  the  convenient  ad- 
ministration of  justice,  the  letter  is  permitted  to  be 
read  at  the  suggestion  of  the  counsel,  but  consider- 
ing it,  however,  as  part  of  the  evidence  of  the 
counsel  proposing  it,  and  subject  to  all  the  conse- 
quences of  having  such  letter  considered  as  part  of  his 
evidence." ' 

The  foregoing  questions  and  answers  were  fol- 
lowed by  this  :  "  Whether,  according  to  the  established 
practice  in  the  courts  below,  counsel  cross-examining 

1  Causes  Celebres.     Trial  of  Queen  Caroline,  N.  Y.,  James 
Cockcroft  &  Co.,  1874,  vol.  i.  p.  376. 


PRIMA  RY  A  XD  SECOND  A  RY  E  VIDEXCE.    799 

are  entitled,  if  the  counsel  on  the  other  side  object  to 
it,  to  ask  a  witness  whether  he  has  made  representa- 
tions of  a  particular  nature,  not  specifying  in  his 
question  whether  the  question  refers  to  representations 
in  writing  or  in  words  ?  " '  Lord  Chief  Justice  Abbott 
delivered  the  following  answer  of  the  judges:  "The 
judges  find  a  difficulty  to  give  a  distinct  answer  to  the 
question  thus  proposed  by  your  lordships,  either  in  the 
affirmative  or  negative,  inasmuch  as  we  are  not  aware 
that  there  is,  in  the  courts  below,  any  established  prac- 
tice which  we  can  state  to  your  lordships,  as  distinctly 
referring  to  such  a  question  propounded  by  counsel 
on  cross-examination,  as  is  here  contained ;  that  is, 
whether  the  counsel  cross-examining  are  entitled  to 
ask  the  witness  whether  he  has  made  such  representa- 
tion ;  for  it  is  not  in  the  recollection  of  any  one  of  us 
that  such  a  question,  in  those  words,  namely,  '  whether 
a  witness  has  made  such  and  such  representation,'  has 
at  any  time  been  asked  of  a  witness.  Questions,  how- 
ever, of  a  similar  nature  are  frequently  asked  at  nisi 
prius,  referring  rather  to  contracts  and  agreements,  or 
to  supposed  contracts  and  agreements,  than  to  declara- 
tions of  the  witness  ;  as,  for  instance,  a  witness  is  often 
asked,  whether  there  is  an  agreement  for  a  certain 
price  for  a  certain  article, — an  agreement  for  a  certain 
definite  time, — a  warranty, — or  other  matter  of  that 
kind  being  a  matter  of  contract :  and,  when  a  ques- 
tion of  that  kind  has  been  asked  at  nisi  prius,  the 
ordinary  course  has  been  for  the  counsel  on  the  othei 
side,  not  to  object  to  the  question  as  a  question  that 
could  not  properly  be  put,  but  to  interpose  on  his  own 
behalf,  another  intermediate  question  :  namely,  to  ask 
the  witness  whether  the  agreement  referred  to  in  the 

1  Causes  Celebres.     Trial  of  Queen  Caroline,  N.  Y.,  James 
Cockcroft  &  Co.,  1874,  vol.  i.  p.  470. 


800      SECONDARY    RULES     OF    EVIDENCE. 

question  originally  proposed  by  the  counsel  on  the 
other'  side,  was,  or  was  not  in  writing ;  and  if  the 
witness  answers  that  it  was  in  writing,  then  the  inquiry 
is  stopped,  because  the  writing  must  be  itself  produced 
— My  lords,  therefore,  although  we  can  not  answer 
your  lordships'  question  distinctly  in  the  affirmative  or 
the  negative,  for  the  reason  I  have  given,  namely,  the 
want  of  an  established  practice  referring  to  such 
a  question  by  counsel ;  yet,  as  we  are  all  of  opinion 
that  the  witness  can  not  properly  be  asked,  on  cross- 
examination,  whether  he  has  written  such  a  thing  (the 
proper  course  being  to  put  the  writing  into  his  hands 
and  ask  him  whether  it  be  his  writing),  considering 
the  question  proposed  to  us  by  your  lordships,  with 
reference  to  that  principle  of  law  which  requires  the 
writing  itself  to  be  produced,  and  with  reference  to 
the  course  that  ordinarily  takes  place  on  questions 
relating  to  contracts  or  agreements,  we,  each  of  us, 
think,  that  if  such  a  question  were  propounded  before 
us  at  nisi  prius,  and  objected  to,  we  should  direct  the 
counsel  to  separate  the  question  into  its  parts.  My 
lords,  I  find  I  have  not  expressed  myself  with  the 
clearness  I  had  wished,  as  to  dividing  the  question 
into  parts.  I  beg,  therefore,  to  inform  the  House, 
that,  by  dividing  the  question  into  parts,  I  mean,  that 
the  counsel  would  be  directed  to  ask  whether  the 
representation  had  been  made  in  writing  or  by  words 
If  he  should  ask,  whether  it  had  been  made  in  writ- 
ing, the  counsel  on  the  other  side  would  object  to  the 
question  ;  if  he  should  ask  whether  it  had  been  made  by 
words,  that  is,  whether  the  witness  had  said  so  and  so,  the 
counsel  would  undoubtedly  havearight  to  put  that  ques- 
tion, and  probably  no  objection  would  be  made  to  it."* 

1  Causes  Celebres.     Trial  of  Oueen  Caroline,  N.  Y.,  James 
Cockcroft  &  Co.,  1874,  vol.  i.  p.  471. 


PRIMA  RY  AND  SECOND  A  RY  E  VIDENCE.    So 1 

474.  The  rule  that  an  advocate  who  has  a  docu- 
ment in  his  possession  shall  not  represent  its  contents 
to  a  witness,  may  possibly  be  defended  on  the  ground, 
that  whoever  uses  a  document  in  a  court  of  justice  has 
no  right  to  suppress  any  part  of  it,  or  prevent  its 
speaking  for  itself;  although  the  fitness  of  extending 
even  this  principle  to  evidence  extra  causam  is  not 
beyond  dispute.  But  whether  a  witness  may  be  asked, 
with  a  view  to  test  his  memory  or  credit,  if  he  has 
ever  made  a  representation,  not  specifying  whether 
verbal  or  written,  or  has  written  a  letter,  not  saying 
to  whom,  when,  or  under  what  circumstances,  in 
which  representation  or  letter  he  has  made  statements 
inconsistent  with  the  evidence  given  by  him,  in  causa, 
is  a  much  larger  question.  It  has  been  suggested  that 
the  above  answers  of  the  judges  have  not  resolved 
this  point  in  the  negative,  and  that  they  were  all  based 
on  the  assumption  that  the  letter  was  in  the  posses- 
sion of  the  cross-examining  counsel,  (e)  In  practice, 
however,  a  different  construction  is  put  upon  them  ;  (f) 
and  we  should  at  once  dismiss  the  subject,  had  not 
that  practice  been  condemned  by  text  writers  on  the 
law  of  evidence,  (^-)  and  the  practice  founded  on 
them  been  recently  modified  by  the  legislature.  (//) 
And  here  it  may  be  doubted  how  far  the   proceedings 

(e)  Ph.  &  Am.  Ev.  932.  in  order  to  answer  the  question.    And 

(/)  Macdonnell  v.  Evans,  11  C.  B.  it  was  held  by  Willesand  Keating,  JJ., 

930.     In  Henman  v.  Lester,  12  C.  B.,  Byles,  ].,dissentienle,  that  the  defen- 

N.  S.  776,  789,  it  was  said  by  Willes,  dant  might  be  asked  in  cross-examina- 

].,  that  the  rules  laid  down  in   Mac-  tion,  whether,  in  a  previous  proceeding 

Jonnell    v.   Evans    and    The   Queen's  in  a  county  court,  there  had  not  been 

case,  were  confined  to  cases   in  which  a  verdict  against  him  ;  although  it  was 

the   document   would   have  been   evi-  objected  that  this  ought  to  be  proved 

dence  upon  the  issue,  or  to  contradict  by  the  record  of  the  verdict  itself, 
the  witness    if  he  had   answered   in  a  (^)    Ph.    &    Am.    Ev.    931   et  seq.; 

particulai  way  ;   or  in  which  the  pre-  Stark.  Ev.    221-227,    4th    Ed.;    Tayl, 

cise  terms  and  language  of  the  docu-  Evid.  §  1301,  4th  ed. 
ment  were  necessary  to  be  referred  to,  (h)  See  infra. 


8o2      SECONDARY    RULES     OF    EVIDENCE. 

in  Oucen  Caroline's  case  are  binding;  on  tribunals,  the 
answers  of  the  judges  to  the  House  of  Lords  having 
no  binding  force  per  se  ;  and  although  in  that  case  the 
House  adopted  and  acted  on  those  answers,  it  was  not 
sitting  judicially,  but  with  a  view  to  legislation,  which 
finally  proved  abortive. 

475.  It  can  hardly  escape  notice  that  throughout 
the  answers  of  the  judges  on  the  occasion  in  question, 
"written  instrument"  and  "  document "  are  assumed 
to  be  convertible  terms — a  fallacy  which  has  led  to 
more  errors  than  one.  A  letter  is  not,  at  least  in  gen- 
eral, a  written  instrument ;  and  therefore  taking  the 
maxim  of  the  common  law  to  be  as  stated  by  Abbott, 
C.  J.,  a  letter  does  not  fall  within  its  meaning.  But  is 
it  true  as  a  historical  fact,  that  "it  is  a  rule  of  evidence 
as  oFd  as  any  part  of  the  common  law  of  England, 
that  the  contents  of  a  written  instrument "  (a  fortiori 
the  contents  of  a  written  document  not  coming  within 
the  description  of  an  instrument),  "if  it  be  in  exist- 
ence, are  to  be  proved  by  that  instrument  "  (or  docu- 
ment) "itself,  and  not  by  parol  evidence"?  And  if 
this  be  so,  is  "parol  evidence"  here  to  be  understood 
as  comprehending  every  form  of  verbal,  derivative, 
and  extrinsic  evidence  ?  And  is  it  further  true  that 
the  rule  has  at  every  period  of  our  legal  history  been 
applied  to  evidence  extra  causam  ?  and  did  the  judges 
in  Queen  Caroline's  case  mean  to  convey  this  idea 
when  they  spoke  of  how  the  contents  of  a  written 
instrument  were  to  be  proved  ?  It  would  be  difficult 
either  to  prove  or  disprove  directly,  what  was  the  prac- 
tice in  former  times  in  this  respect  relative  to  evidence 
extra  causam,  so  much  of  our  actual  law  of  evidence 
being  of  comparatively  modern  growth,  and  our 
ancient  books  affording  very  slender  information  as  to 
what  questions  might  be  put  in  cross-examination  as 


PRIMA  RY  AND  SECOND  A  RY  E  VIDENCE.    803 

distinguished  from  examination-in-chief.  But  it  is  by 
no  means  clear  that,  even  in  this  latter  case,  our  ances- 
tors extended  the  principle  requiring  primary  proof 
beyond  records,  deeds,  and  perhaps  written  instru- 
ments in  general.  The  reasons  given  by  the  old  law- 
yers for  rejecting  derivative  or  extrinsic  evidence,  have 
manifest  reference  to  such,  (z)  while  all  other  docu- 
ments seem  to  have  been  considered  as  mere  "  parol." 
And  this  view  seems  supported  by  the  traces  of  the 
ancient  practice  which  have  come  down  to  us.  In 
the  State  Trials  we  constantly  find  the  contents  of 
documents  given  by  witnesses  from  recollection ;  (£) 
but  then  the  circumstance  that  those  are  the  reports 
of  state  prosecutions,  during  very  excited  times,  de- 
tracts from  their  value  as  accurate  representations  of 
the  ordinary  practice  of  the  period.  It  is,  however, 
tolerably  certain  that,  so  late  at  least  as  the  latter  end 
of  the  sixteenth  century,  all  other  forms  of  derivative 
evidence,  such  as  hearsay,  &c.,  were  received  as  evi- 
dence in  causa,  their  weakness  being  only  matter  of 
observation  to  the  jury.  (/)  Now  it  seems  improbable 
that,  while  hearsay  evidence  was  receivable  in  chief 
within  three  centuries  of  our  own  times,  a  witness 
could  not,  from  the  earliest  period  of  English  law,  be 
asked  in  cross-examination  either  the  contents  of  the 
most  ordinary  document,  or  whether  he  ever  made  a 
representation  of  some  particular  fact,  because  by 
possibility  it  might  turn  out  that  he  had  not  done  so 
verbally.1 

476.  In  dealing  with  this  subject,  much  reliance 
is  commonly  placed  on  an  analogy  drawn  from  the  rule 
of  pleading  which,  previous  to  the  15  &  16  Vict.  c.  76, 

(i)  See  bk.  2,  pt.  3.  (/)  Bk.  1,  pt.  2,  %%  112,  114. 

H)  Bk.  r,  pt.  2,  §  115. 

1  See  ante,  vol.  i.,  note  1,  p.  399,  et  scq. 


804      SECONDARY    RULES    OF    EVIDENCE. 

s.  55,  required  profert  to  be  made  of  deeds  and  some 
other  species  of  writings.  This  seems  founded  chiefly 
on  Dr.  Ley-field's  case,  (in)  where  it  is  stated  that, 
"  the  reason  that  deeds  being  so  pleaded  shall  be 
showed  to  the  court,  is,  that  to  every  deed  two  things 
are  requisite  and  necessary ;  the  one,  that  it  be  suffi- 
cient in  law  ;  and  that  is  called  the  legal  part,  because 
the  judgment  of  that  belongs  to  the  judges  of  the  law ; 
the  other  concerns  matter  of  fact,  sc.  if  it  be  sealed  and 
delivered  as  a  deed ;  and  the  trial  thereof  belongs  to 
the  country.  And  therefore  every  deed  ought  to  ap- 
prove itself,  and  to  be  proved  by  others;  approve  it- 
self upon  its  showing  forth  to  the  court  in  two  man- 
ners, i..  As  to  the  composition  of  the  words  to  be 
sufficient  in  law,  and  the  court  shall  judge  that.  2. 
That  i£  be  not  razed  or  interlined  in  material  points  or 
places,  and  upon  that  also  in  ancient  time,  the  judges 
did  judge,  upon  their  view,  the  deed  to  be  void,  as  ap- 
pears in  7  E.  3,  57 ;  25  E.  3,  41 ;  41  E.  3,  10,  &c. ;  but 
of  late  times  the  judges  have  left  that  to  be  tried  by 
the  jury,  sc.  if  the  razing  or  interlining  was  before  the 
delivery.  3.  That  it  may  appear  to  the  court  and  to 
the  party,  if  it  was  upon  condition,  limitation,  or  with 
power  of  revocation,  &c,  to  the  intent  that  if  there  be 
a  condition,  limitation,  or  power  of  revocation  in  the 
deed,  if  the  deed  be  poll,  or  if  there  wants  a  counter- 
part of  the  indenture,  the  other  party  may  take  advan- 
tage of  the  condition,  limitation,  or  power  of  revoca- 
tion, and  therewith  Litt.  c.  Conditions,  f.  90,  91.  40 
Ass.  34  agree.  And  these  are  the  reasons  of  the  law, 
that  deeds  pleaded  in  court,  shall  be  showed  forth  to 
the  court."  It  was  accordingly  held  in  that  case,  that 
the  defendant  was  bound  to  make  profert  of  the  let- 

(m)  10  Co.  92. 


PRIMARY  AND  SECONDARY  EVIDENCE.    805 

ters  patent  on  which  he  rested  his  justification  of  the 
trespass  complained  of ;  but  whether  what  follows  the 
passage  just  quoted,  is  to  be  read  as  the  language  of 
the  court  or  of  the  reporter,  is  not  easy  to  say.  "  And 
therefore  it  appears,  that  it  is  dangerous  to  suffer  any 
who  by  the  law  in  pleading  ought  to  show  the  deed 
itself  to  the  court,  upon  the  general  issue  to  prove  in 
evidence  to  a  jury  by  witnesses,  that  there  was  such  a 
deed  which  they  have  heard  and  read  ;  or  to  prove  it 
by  a  copy ;  for  the  viciousness.  razures,  or  interlinea- 
tions, or  other  imperfections  in  these  cases,  will  not 
appear  to  the  court :  or  peradventure  the  deed  may  be 
upon  condition,  limitation,  with  power  of  revocation  ; 
and  by  this  way  truth  and  justice,  and  the  true  reason 
of  the  common  law  would  be  subverted.  But  yet  in 
great  and  notorious  extremities,  as  by  casualty  of  fire, 
that  all  his  evidences  were  burnt  in  his  house,  there  if 
that  should  appear  to  the  judges,  they  may,  in  favor  of 
him  who  has  so  great  a  loss  by  fire,  suffer  him  upon 
the  general  issue  to  prove  the  deed  in  evidence  to  the 
jury  by  witnesses,  that  affliction  be  not  added  to  afflic- 
tion :  and  if  the  jury  find  it,  although  it  be  not  showed 
forth  in  evidence,  it  shall  be  good  enough,  as  appears 
in  28  Ass.  p.  3  ,  but  in  12  Ass.  p.  16,  the  judges  would 
not  suffer  a  deed  to  be  given  in  evidence  which  was 
not  showed  forth  to  the  jury.  Vide  26  Ass.  p.  2,  the 
like."  (n) "  Also  (0)  the  deed  ought  not 

(«)  The  two  cases  from  the  book  of  et   le   pl'le   fitz  B.  d'une   autre   feme. 

Assizes  will  be  found,  on  examination,  Et  pur  ceo  que  garrant   ne   chiet   pas 

to  fall  very  far  short   of   the  general  en    lour   con  is.   que   deveront   faire   le 

proposition    which    they   are   cited   to  tail,  et  la  chartre  ne  fuit  pas  monstre 

support.     The  26  Ass.  pi.  2  is  a  little  en  evidence  nepled,  agarde  fuit  que  le 

obscure  ;    but  the   12  Ass.  pi.  16  is  as  fitz  recover,  &c,  uncore  les  files  pled 

follows: — "Trove     fuit     per     verdict  que    la    terre    fuit    don    en    tail,    etc. 

d'assize,    oue    les    tenements    fueront  Quaere,  si  lachart  ust  este  monstre  ;   si 

dones  a  B.  ec  a  R.  per  un  chartre  que  la  tail  usteste  e  les  files." 
voloit  ceux  parolx,  Dedi,  etc.     Et  les  (o)  10  Co.  93a. 

defendants  fueront  les  files  B.  et    R.; 


8o6     SECONDARY    RULES    OF    EVIDENCE. 

only,  as  hath  been  said,  to  approve  itself,  but  it  ought 
to  be  proved  by  others,  sc.  by  witnesses,  that  it  was 
sealed  and  delivered  ;  for  otherwise,  although  the  fab- 
ric and  composition  of  the  deed  be  legal,  yet  without 
the  other  it  is  of  no  effect." 

477.  Although  one  object  of  profert  may  have 
been  to  enable  the  court  to  judge,  by  inspection,  of 
the  sufficiency  of  the  deed  relied  on,  yet  Serjeant  Ste- 
phen, no  mean  authority  on  such  matters,  questions 
whether  the  practice  originated  in  this  view,  and  thinks 
that  the  producing  the  deed  was  only  a  compliance 
with  the  general  rule  of  pleading,  which  requires  all 
affirmative  pleadings  to  be  supported  by  an  offer  of 
some  mode  of  proof,  (p)  In  ancient  times,  when  a 
cause  turned  on  a  deed,  the  witnesses  to  the  deed 
acted  in  some  degree  as  a  jury,  and  were  brought  in 
by  a  process  analogous  to  a  jury  process  ;  (y)  and  the 
object  of  laying  the  deed  before  the  court  was  to  ena- 
ble them  to  see  whether  it  wTas  sufficient  in  law  if 
proved,  and  if  so,  to  issue  process  to  bring  in  the  wit- 
nesses. In  confirmation  of  this  it  is  to  be  observed 
that,  at  least  in  general,  no  profert  was  required  of  a 
document  not  falling  within  the  technical  definition  of 
a  deed,  (r)  however  completely  an  action  or  defense 
might  rest  on  it, — e.  g.  an  agreement  not  under  seal  ; 
(s)  or  however  indispensable  its  production  at  the 
trial,  as  a  bill  of  exchange.  (7  )  And  even  of  a  deed 
no  profert  was  required,  unless  the  party  pleading 
claimed  or  justified  underit;  not  even  then  unless  he 
relied  on  its  direct  and  intrinsic  operation,  (tt) 

(p)  Steph.  Plead.  485  ;  and  Append.  (/)  See   Ramuz  v.  Crowe,    1  Exch. 

note  68,  5th  Ed.  167  ;    Clay  v.   Crowe,    8    Exch.    295  ; 

(q)   Co.   Litt.  6  b;    Bro.   Abr.   tit.  Jungbluth    v.   Way,   1    H.   &   N.   71; 

Testmoignes.  Aranguren  v.  Scholfield,  Id.  494  ;    17 

(r)  Steph.  Plead.  483,  5th  Ed.  &  iS  Vict.  c.  125,  s.  87. 

(s)  Id.  («)  Steph.  Plead.  484,  5th  Ed. 


PRIMA  RY  A  ND  SECOND  A  RY  E  VIDENCE.    807 

478.  But  whatever  value  may  be  attributed  to  the 
analogy  from  the  theory  of  profert,  there  are  other 
analogies  much  more  to  the  purpose  the  other  wav. 
All  other  forms  of  derivative  and  remote  evidence, 
such  as  hearsay,  res  inter  alios  gestae,  opinion  evidence, 
and  the  like  may,  in  most  instances  at  least,  be  used  to 
test  the  credit  of  witnesses ;  and  even  the  judges  in 
Queen  Caroline's  case  concede,  that  a  witness  may  be 
asked  whether  he  ever  made  a  verbal  representation 
inconsistent  with  the  evidence  he  has  already  given. 
Now,  as  it  is  indisputable  that  if  that  verbal  represen- 
tation were  made  to  a  third  party  it  would  not  be  evi- 
dence-in-chief, why  is  it  evidence  on  cross-examina- 
tion ?  The  answer  is  obvious — that  if  the  witness 
were  untruly  to  deny  having  given  a  certain  account 
of  the  transaction  to  which  he  has  deposed,  it  would 
show  a  defect  either  in  his  memory  or  in  his  honesty  ; 
but  does  not  this  apply  a  fortiori  to  a  statement  re- 
duced to  writing,  seeing  that  a  man  is  less  likely  to  for- 
get what  he  has  taken  the  pains  to  write  down  ?  Then 
it  is  said,  a  portion  of  the  writing  might  be  suppressed, 
so  that  the  court  and  jury  would  not  see  the  whole  of 
it ;  but  this  argument  would  exclude  the  verbal  repre- 
sentation ;  for  this  latter  may  have  been  made  in  a 
conversation  part  of  which  is  suppressed,  and  the 
whole  of  which  taken  together  (the  rest,  be  it  ob- 
served, can  be  retracted  on  re-examination,  or  given 
by  the  witness  himself  in  the  way  of  explanation), 
would  give  an  entirely  different  color  to  the  matter. 
By  requiring  the  document  containing  the  supposed 
contradiction,  to  be  put  into  the  hands  of  the  witness 
in  the  first  instance,  the  great  principle  of  cross-exam- 
ination is  sacrificed  at  once.  When  a  man  gives  cer- 
tain evidence,  and  the  object  is  to  show  that  he  has  on 
a  former  occasion  given  some  different  account,  com 


8o8      SECONDARY    RULES    OF    EVIDENCE. 

mon  sense  tells  us  that  the  way  of  bringing  about  a 
contradiction  is  to  ask  him  if  he  has  ever  done  so  ;  in 
order  that  he  may  have  no  intimation  of  the  time, 
place,  or  circumstances  alluded  to,  or  consequently  of 
what  means  are  available  to  contradict  and  discredit 
him.  Yet,  according  to  the  practice  under  the  resolu- 
tions in  Queen  Caroline's  case,  if  the  witness  had  taken 
the  precaution  to  reduce  his  previous  statement  to 
writing,  the  writing  must  be  put  into  his  hands,  accom- 
panied by  the  question  whether  he  wrote  it ;  thus  giv- 
ing him  full  warning  of  the  danger  he  had  to  avoid, 
and  full  opportunity  of  shaping  his  answers  to  meet  it. 

479.  The  principles  laid  down  by  the  judges  in 
Queen  Caroline's  case  were  rather  extensively  applied. 
After  the  passing  of  the  6  &  7  Will.  4,  c.  114,  which 
allowed  prisoners  on  trial  for  felony  to  make  their  full 
defense  by  counsel,  twelve  of  the  judges,  having  as- 
sembled to  choose  the  spring  circuits  of  1837,  agreed 
to  the  following  among  other  resolutions  :  (x) 

"  1.  Where  a  witness  for  the  crown  has  made  a 
deposition  before  a  magistrate,  he  can  not,  upon  his 
cross-examination  by  the  prisoner's  counsel,  be  asked 
whether  he  did  or  did  not,  in  his  deposition,  make  such 
or  such  a  statement,  until  the  deposition  itself  has  been 
read,  in  order  to  manifest  whether  such  statement  is  or 
is  not  contained  therein  ;  and  such  deposition  must  be 
read  as  part  of  the  evidence  of  the  cross-examining 
counsel. 

"  2.  After  such  deposition  has  been  read,  the  pris- 
oner's counsel  may  proceed  in  his  cross-examination  of 
the  witness,  as  to  any  supposed  contradiction  or  vari- 
ance between  the  testimony  of  the  witness  in  court  and 
his  former  deposition  ;  after  which  the  counsel  for  the 

(x)  7  C.  &  P.  67b 


PRIMARY  AND  SECONDARY  EVIDENCE.    809 

prosecution  may  re-examine  the  witness,  and,  after  the 
prisoner's  counsel  has  addressed  the  jury,  will  be  en- 
titled to  the  reply.  And  in  case  the  counsel  for  the  pris- 
oner comments  on  any  supposed  variance  or  contradic- 
tion, without  having  read  the  deposition,  the  court  may 
direct  it  to  be  read,  and  the  counsel  for  the  prosecu- 
tion will  be  entitled  to  rely  upon  it. 

"  3.  The  witness  can  not,  in  cross-examination,  be 
compelled  to  answer,  whether  he  did  or  did  not  make 
such  or  such  a  statement  before  the  magistrate,  until 
after  his  deposition  has  been  read,  and  it  appears  that  it 
contains  no  mention  of  such  statement.  In  that  event 
the  counsel  for  the  prisoner  may  proceed  with  his 
cross-examination  :  and  if  the  witness  admits  such 
statement  to  have  been  made,  he  may  comment  upon 
such  omission,  or  upon  the  effect  of  it  upon  the  other 
part  of  his  testimony ;  or  if  the  witness  denies  that  he 
made  such  a  statement,  the  counsel  for  the  prisoner 
may  then,  if  such  statement  be  material  to  the  matter 
in  issue,  call  witnesses  to  prove  that  he  made  such 
statement.  But  in  either  event,  the  reading  of  the 
deposition  is  the  prisoner's  evidence,  and  the  counsel 
for  the  prosecution  will  be  entitled  to  reply." 

480.  Although  these  resolutions  were  not  binding 
per  se,  not  being  the  decision  of  a  court  in  a  judicial 
proceeding,  they  were  followed  in  practice.  And  in 
order  to  prevent  any  evasion  of  them  it  was  held,  that 
a  witness  could  not  be  asked  on  cross-examination,  il 
he  had  ever  made  a  statement  inconsistent  with  his 
evidence-in-chief;  but  that  the  question  must  be 
guarded  with  the  saving  clause,  that  the  party  interro- 
gating was  not  referring  to  what  might  have  taken 
place  before  the  committing  magistrate,  (y)  or  coroner 
(z)   as  the  case  might  be.     The  anticipating  possible 

00  R.  v.  Shellard,  9  C.  &  P.  277.  (s)  R.  v.  Holden,  S  C.  &  P.  606. 


8ro     SECONDARY    RULES     OF    EVIDENCE. 

objections  has  been  truly  designated  by  C.  J.  Hale 
"  leaping  before  one  comes  to  the  stile,  "(a)  Suppose 
the  witness  instead  of  making  the  inconsistent  state- 
ment on  his  examination  before  the  committing  magis- 
trate or  coroner,  had  made  it  by  matter  of  recorJ  or  by 
deed,  or  even  by  letter,  his  parol  account  of  it  would, 
according  to  Queen  Caroline's  case,  be  inadmissible ; 
still  it  was  not  thought  necessary,  to  require  the  cross- 
examining  counsel  to  negative  these  various  hypotheses 
by  the  mode  of  putting  his  questions.  Another  ques- 
tion had  also  arisen.  Although  a  witness  could  not  be 
asked  what  he  said  before  the  committing  magistrate, 
unless  either  his  deposition  was  put  in  evidence,  or  it 
was  proved  that  the  testimony  given  by  him  on  that 
occasion  was  not  taken  down  in  writing  ;  if  the  witness 
had  signed  the  deposition  so  made  by  him,  might  a 
cross-examining  counsel  at  the  trial,  put  it  into  his 
hand  as  a  memorandum  to  refresh  his  memory,  and  ask 
him  if,  after  having  read  it,  he  persisted  in  the  evidence 
given  by  him  in  chief?  This  course  was  allowed  in 
several  instances,  (p)  but  was  disallowed  by  some 
judges,  (c)  and  disapproved  by  others  ;  (d)  and  finally 
by  the  Court  of  Criminal  Appeal,  (e) 

481.  The  answers  of  the  judges  in  Queen  Caroline's 
case,  on  which  we  have  been  commenting, — opposed  as 
they  were,  to  the  most  elementary  principles  of  evidence, 
— having  for  years  been  denounced  by  writers  on  the 
subject,  and  latterly  by  the  Common  Law  Commission- 
ers of  1850,  (/)  at  length  received  the  condemnation  of 


(a)  1  Ventr  217.  15    L.  T.  26  ;    per  Parke,  B.,  in  R.  r. 

(!>)  R.  v.  Edwards,  8  C.  &  P.  31  ;  R.  Lang,  Kingst.  Sp.  Ass.  1851,  MS. 

v.  Tooker,  and  R.  v.  Wilson,  Salop  Sp.  (d)  See  R.  v.  Matthews;  4  Cox,  Cr. 

Ass.  1849,  ex  relatione  :  R.  v.  Newton,  Ca.  93. 

2  Ph.  Ev.  516,  10th  Ed.;  R.  v.  Barnet,  (e)  R.  v.  Ford,  2  Den.  C.  C.  245  ;    5 

4  Cox/Cr.  Ca.  269.  Cox,  Cr.  Ca.  184  ;  3  Car.  &.  K.  1 13. 

(c)  Per  Patteson,  T-,  in  R.  v.  Newton,  (/)  Second  Report,  p.  20. 


PRIMAR  Y  AND  SDCONDAR  Y  E  VIDENCE.    8 1 1 

the  legislature.  The  17  &  18  Vict.,  c.  1 25,  s.  24,  following 
almost  verbatim  the  recommendation  of  those  commis- 
sioners, enacts  :  "  A  witness  may  be  cross-examined  as 
to  previous  statements  made  by  him  in  writing,  or  re- 
duced into  writing,  relative  to  the  subject-matter  of 
the  cause,  without  such  writing  being  shown  to  him ; 
but  if  it  is  intended  to  contradict  such  witness  by  the 
writing,  his  attention  must,  before  such  contradictory 
proof  can  be  given,  be  called  to  those  parts  of  the 
writing  which  are  to  be  used  for  the  purpose  of  so 
contradicting  him  :  Provided  always,  that  it  shall  be 
competent  for  the  judge,  at  any  time  during  the  trial, 
to  require  the  production  of  the  writing  for  his  inspec- 
tion, and  he  may  thereupon  make  such  use  of  it  for 
the  purposes  of  the  trial  as  he  shall  think  fit."  By 
sect.  103,  the  enactments  in  this  section  are  extended 
to  every  court  of  civil  judicature  in  England  and  Ire- 
land;  and  28  Vict.  c.  18,  sects.  1  &  5,  extends  them  to 
criminal  cases. 

482.  It  has  been  already  stated,  that  when  the  ab- 
sence of  the  primary  source  of  evidence  has  been 
accounted  for,  secondary  evidence  is  receivable,  (g)1 
The  excuses  which  the  law  allows  for  dispensing  with 
primary  evidence  are,  that  the  document  has  been 
destroyed  or  lost,2  or  that  it  is  in  the  possession  of  the 

{g)  Supra,  ^  472.    "  Quumque  ex  ea  tionem  perimi,  dum  alia  supersit  pro- 

definitione       adpareat,       instrumenta  bandi  ratio;"    Heinec.  ad  Pand.  pars 

rerum    gestirum    fidei    ac    memorise  4,  §  133.     See  also  Mascard.  de  Prob. 

causa  confici  :  facile  patet,  eis  amissis,  Concl.  480,  n.  4. 
jus   non  expirare,   nee    ullam    obliga- 

1  See  ante,  vol.  i.,  p.  399,  note  1,  et  seq. 

a  That  is  to  say,  after  sufficient  search  has  been  maut. 
Davis  v.  Spooner,  3  Pick.  284;  Dennis  v.  Brewster,  7  Gray 
(Mass.)  351  ;  Rush  v.  Whitney,  4  Mich.  495  ;  Rutland,  &c.  R. 
R.  Co.  v.  Thrall,  35  Vt.  536;  Haywood,  &c.  Plank  Road  Co 
v.  Bryan,  6  Jones  (N.  C.)  L.  82  ;  Cheatham  v.  Riddle, 
8  Tex.  162.  A  party  is  not  allowed  to  produce  secondary 
evidence  until  a  bona  fide  and    diligent  search  has    been  un- 


812      SECONDARY    RULES     OF    EVIDENCE. 

adversary,  who  does  not  produce  it  after  due  notice 
calling  on  him  to  do  so  ;  or  in  that  of  a  party  privi- 
leged to  withhold  it,  who  insists  on  his  privilege;  or 
who  is  out  of  the  jurisdiction  of  the  court,  and  conse- 
quently can  not  be  compelled  to  produce  it.  Whether 

successfully  made  for  the  lost  instrument,  in  the  place  where 
it  was  most  likely  to  be  found.  Meek  v.  Spencer,  8  Ind.  118. 
As  to  what  will  and  will  not  be  a  sufficient  search,  see  post, 
note  i,  p.  814;  and  consult  also  Murray  v.  Buchanan,  7  Blackf. 
(Ind.)  549;  Mullikin  v.  Boyce,  1  Gill  (Md.)  60;  Glenn  v. 
Rogers,  3  Md.  312;  Doe  v.  McCaleb,  3  Miss.  (2  How.)  756; 
Parke  v.  Bird,  3  Pa.  St.  360;  Vaulx  v.  Merri wether,  2  Sneed. 
(Tenn.)  683;  Wade  v.  Work,  13  Tex.  4S2  ;  Royalton  v.  Turn- 
pike Co.,  14  Vt.  311  ;  Fletcher  v.  Jackson,  23  Id.  581  ;  Porg- 
naid  v.  Smith,  8  Pick.  (Mass.)  272;  Dan  v.  Brown,  4  Cow.  (N. 
Y-)  4S'3  ;  Jackson  v.  Betts,  6  Id.  377;  9  Id.  208;  Dreisbach  v. 
Birger,  6  Watts  &  S.  (Pa.)  564 ;  S.  P.  Cook  v.  Hunt,  24  111. 
535  ;  Holbrook  v.  School  Trustees,  28  Id.  187  ;  Dickerson  v. 
Talbot,  14  B.  Men.  (Ky.)  60  ;  Sellers  v.  Carpenter,  2,2,  Me.  485  ; 
Kidder  v.  Blaisdall,  45  Id.  461  ;  Barton  v.  Munian,  27  Mo. 
235;  Jackson  v.  Hasbrouck,  13  Johns.  (N.  Y.)  192;  Jackson 
v.  Frier,  16  Id.  192  ;  Jackson  v.  Root,  18  Id.  60;  see  as  to  the 
testimony  required  from  an  attorney  who  had  mislaid  papers, 
Hatch  v.  Carpenter,  9  Gray  (Mass.)  271  ;  and  of  an  agent, 
Bank  of  North  America  v.  Embury,  2,0  Barb.  323. 

It  was  held  in  Vermont  that  the  court  will  not  presume  that 
a  deed  of  lands  has  been  recorded,  and  require  the  records  to  be 
searched  before  admitting  parol  evidence  of  a  deed.  Mattocks 
v.  Stearns,  9  Vt.  326  ;  but  see  directly  the  contrary  held  in 
Stow  v.  People,  25  111.  81.  It  is  the  duty  of  a  sheriff,  after 
levying  under  a  tax  execution,  to  return  it  to  the  office  of  the 
solicitor-general,  and  it  is  to  be  presumed  that  he  did  this,  and 
inquiry  for  it  must  be  made  at  such  office  before  secondary 
evidence  of  its  contents  can  be  admissible.  Davenport  v. 
Harris,  27  Ga.  68.  Secondary  proof  as  to  the  want  of  service 
of  summons  can  not  be  admitted,  before  an  inquiry  is  made  of 
the  present  magistrate  for  the  original  papers.  It  is  a  fair 
presumption  that  all  the  papers  appertaining  to  the  office  will 
De  found  in  the  possession  of  the  last  incumbent.  Adams  v. 
Fitzgerald,  14  Ga.  36;  and  see  Carr  v.  Miner,  42  111.  179; 
Little  v.  Indianapolis,  13  Ind.  364;  Simpson  v.  Norton,  45 
Me.  281. 

Secondary  evidence  of  the  contents  of  letters,  will  not  be 


PRIMARY  AND  SECOND  A  RY  E  VIDENCE.    8 1 3 

a  sufficient  foundation  has  been  laid  for  admitting 
secondary  evidence,  is  often  a  matter  of  nicety  ;  and 
depends  on  whether  sufficient  proof  has  been  given  of 
the  destruction  or  loss  of  the  document ;  whether  a 
notice  to  produce  is  required — as  in  many  cases  the 
proceedings   amount  to   constructive    notice,   and   in 

permitted  when  no  special  search  has  been  made  for  the 
originals,  because  an  attorney  in  the  case  and  a  witness  each 
supposed  that  the  other  had  the  letters  and  would  bring  them 
to  the  trial ;  Simpson  v.  Dall,  3  Wall.  460  ;  though  copies  of 
letters  written  by  the  seconds  engaged  in  a  duel  may  be  in- 
troduced, when  it  is  shown  that  the  originals  were  last  seen 
in  the  possession  of  an  officer  of  the  United  States  army,  who 
is  now  absent  on  duty.  Moody  v.  Commonwealth,  4  Mete. 
(Ky.)  1.  But  where  an  instrnment  has  never  been  in  the  cus- 
tody or  control  of  a  party  wishing  to  use  it,  and  is  of  such 
character  that  the  law  will  not  presume  his  control  thereof,  he 
will  not  be  required  to  show  a  diligent  search  among  his 
papers  before  giving  parol  evidence  of  its  contents.  Wells  v. 
Miller,  37  111.  276. 

Proof  of  a  loss  of  an  account  book  of  original  entries,  not 
showing  who  last  had  possession  of  the  book,  or  any  bona 
fide  and  diligent  search  for  it,  will  be  insufficient  to  authorize 
secondary  evidence  of  its  contents,  although,  if  no  objection 
be  taken,  such  secondary  evidence  may  be  allowed.  Caul- 
field  v.  Sanders,  17  Cal.  500.  The  contents  of  a  lost  deed  may 
be  proved,  on  proof  of  its  existence  and  loss;  but  diligent 
search  must  first  be  made  in  the  proper  custody.  Armstrong 
v.  Timmons,  3  Har.  (Del.)  342.  Secondary  evidence  of  instru- 
ments has  been  held  admissible  where  articles  of  partnership 
were  lost.  Perry  v.  Randolph,  r4  Miss.  (6  Smed.  &  M.)  335. 
Where  a  forged  instrument,  on  which  an  indictment  is  pend- 
ing, has  been  lost.  Commonwealth  v.  Snell,  3  Mass.  82.  Of 
the  mutilated  part  of  a  paper.  Fullis  v.  Griffith,  Wright 
(Ohio)  303.  Of  the  contents  of  a  lost  agreement;  although 
founded  entirely  on  memoranda  made  in  the  loser's  private 
docket  at  the  time  of  receiving  it,  and  without  his  independent 
recollection.  Morrison  v.  Chapin,  97  Mass.  72.  Of  deeds  ; 
where  copies  are  made  by  disinterested  persons,  of  good  char- 
acter, and  under  circumstances  that  create  no  imputation  of 
fraud  ;  where  the  original  is  proved  to  be  lost.  Allen  v.  Par 
ish,  3  Ohio,  107,  &c,  &c. 


8i4      SECONDARY    RULES     OF    EVIDENCE. 

others  notice  to  produce  is  dispensed  with  by  statute 
(Ji)  and  if  so,  whether  the  notice  given  is  sufficient  in 
its  terms,  and  has  been  given  in  proper  time,  &c. 
There  arc,  however,  some  general  principles  which 
should  always  be  borne  in  mind.  First.  Whether 
sufficient  search  has  been  made  for  a  document, 
depends  much  on  its  nature  and  the  circumstances  of 
the  case,  (2)  '  as  a  useless  document  may  be  presumed 

(//)  E.  g.  17  &  18  Vict.  c.  104,  s.  165.       319;    Richards  v.  Lewis,  15  Jur.  512; 
(0  R.  v.  East  Farleigh,  6  D.  &  Ryl.      R.  v.  Braintree,  1  E.  &  E.  51  ;  Quilter 
147  ;  Gathercole  v.  Miall,  15  M.  &  \V.      v.  Jorfs,  14  C.  B.,  N.  S.  747. 

1  Due  diligence  in  the  search  for  a  subscribing  witness  to 
a  paper  may  be,  inquiry  at  the  place  where  he  was  last  heard  of. 
Cooke  v.  Woodrow,  5  Cranch,  13  ;  and  see  Jones  v.  Scott,  2 
Ala.  58.  To  authorize  secondary  evidence  of  the  contents  of  an 
execution,  issued  by  a  justice  of  the  peace,  it  is  sufficient  to 
show,  by  the  justice,  that  he  can  not,  after  diligent  search,  find 
it  in  his  office,  and  has  not  seen  it  since  the  last  term  of  the 
circuit  court,  when  it  went  before  the  jury  as  evidence  in  an- 
other cause,  accompanied  by  the  testimony  of  the  circuit 
clerk  that  he  has  made  diligent  but  unsuccessful  search  for 
it  among  the  files  of  his  office  containing  the  trial  papers  of 
the  last  term.  Johnson  v.  Powel,  30  Ala.  113.  Much  less 
diligence  in  searching  for  a  paper,  before  offering  secondary 
evidence  of  its  contents,  will  be  required  when  the  paper  in 
question  belongs  to  the  adversary,  than  when  it  belongs  to 
the  party  offering  the  testimony.  Desnoyer  v.  McDonald,  4 
Minn.  515.  To  let  in  parol  evidence  of  the  contents  of  an 
execution,  it  is  not  necessary  that  the  clerk's  office  should  be 
searched  for  it  by  the  clerk  himself;  but  search  by  another, 
who  has  access,  is  sufficient.     Hilly.  Fitzpatrick,  6  Ala.  314. 

It  is  sufficient  if  a  defendant,  when  applied  to  for  a  deed, 
denies  having  it  in  his  possession  and  expresses  his  belief  that 
it  is  in  the  register's  office,  where  an  ineffectual  search  is  made 
for  it,  and  also  in  the  office  of  a  lawyer,  who  once  had  it  in 
his  possession.  Shields  v.  Byrd,  15  Ala.  8 18.  Where  there  is 
evidence  that  a  written  bill  of  sale  has  been  in  the  possession 
of  one  or  the  other  of  two  persons,  it  must  be  proved  that 
both  of  them  have  searched  for  it  and  been  unable  to  find  it. 
Patterson  v.  Keystone,  &c,  Co.,  30  Cal.  360. 

In  case  of  a  deed  of  ancient  date,  and  such  as  would  not  pro- 
bably be  preserved  a  great  length  of  time,  as  a  bill  of  sale   of 


PRIMAR  Y  AND  SECOND AR  Y  E VIDENCE.    8 1 5 

to  have  been  lost  or  destroyed,  on  proof  of  a  much 
less  search,  and  after  a  much  shorter  time,  than  an  im- 
portant one'     This  subject  is  well  illustrated   in  the 

slaves,  inquiry  of  persons  who  were  supposed  to  know  of  it,  was 
held  sufficient  proof  of  diligence  to  let  in  secondary  evidence, 
in  Beall  v.  Dearing,  7  Ala.  124.  And  if  a  person  is  deprived, 
by  fraud,  of  the  possession  of  written  instruments  which 
belong  to  him,  secondary  evidence  of  their  contents  is  admis- 
sible.    Grimes  v.  Kimball,  3  Allen  (Mass.)  518. 

in  cases  of  an  allegation  of  loss  of  an  instrument,  if  sus- 
picion is  cast  upon  the  fact  of  the  loss,  great  diligence  in  the 
search  must  be  shown  ;  but  in  the  absence  of  suspicion 
against  the  party  asserting  the  loss,  less  diligence  will  be 
required.  Phenix  Ins.  Co.  v.  Taylor,  5  Minn.  492;  and  see 
Pickard  v.  Bailey,  26  N.  H.  (6  Fost.)  152;  Kelsey  v.  Hanmer, 
18  Conn.  311;  Leland  v.  Cameron,  31  N.  Y.  115.  Search  by 
the  last  person  known  to  have  had  possession  of  the  paper 
(1  Kemphill  v.  McClernans,  24  Pa.  St.  367)  ;  or  by  its  proper 
custodian,  unless  traced  to  other  hands  (GrofF  v.  Pittsburg, 
&c.  R.  R.,  31  Pa.  St.  4S9)  ;  or  in  the  place  where  it  was 
most  likely  to  be  found  (Drake  v.  Ramsey,  3  Rich.  (S.  C.)  37  ; 
Birchfield  v.  Bonham,  2  Spears  (N.  C.)  62);  or  proof  that  it 
was  last  seen  in  possession  of  a  person  without  the  jurisdiction 
of  the  court  (Clifton  v.  Lilley,  12  Tex.  130;  Mordecai  v.  Beall, 
8  Port.  (Ala.)  529). 

Testimony  of  the  clerk  of  a  court  that  he  had  made  diligent 
search  for  certain  writs  of  execution  belonging  to  the  files  of  his 
office,  and  was  unable  to  find  them;  Stewart  v.  Connor,  9  Ala. 
803;  or  of  a  search  foran  appeal  bond  by  the  justice  among  the 
papers  of  his  office,  and  in  the  county  clerk's  office,  in  the 
places  where  such  bonds  are  usually  kept,  without  success; 
Teall  v.  Van  Wyck,  10  Barb.  (N.  Y.)  376;  or  by  the  grantee 
in  a  deed  that  he  deposited  it  in  the  post-office  directed  to 
another,  who  testifies  that  he  never  received  it,  and  that  un- 
successful inquiry  has  been  made  at  the  office  of  deposit  and 
delivery,  and  to  the  general  post-office,  by  letter;  McRae  v. 
Pegues,  4  Ala.  158;  or  that  an  execution  has  been  returned 
to  the  clerk's  office,  and  that  search  has  there  been  made 
for  it,  both  by  the  clerk  and  the  party's  attorney  ;  Poe  v.  Dor- 


1  The  degree  of  diligence  which  will  be  required,  will  be 
regulated  by  the  value  of  the  lost  document.  Spaulding  v 
Bank  of  Susquehanna  County,  9  Pa.  St.  28. 


816     SECONDARY    RULES     OF    EVIDENCE. 

case  of  Gathercole  v.  Miall,  (/)  which  was  an  action 
for  a  libel  in  a  newspaper  called  "The  Nonconformist." 
In  order  to  prove  the  circulation  of  the  libel,  a  witness 

(/)  15  M.  &  W.  319. 

rah,  20  Ala.  288  ;  or  that  some  years  before  he  had  received 
a  letter  from  the  plaintiff  in  the  action,  that  he  had  searched 
for  it  among  his  papers  and  files  of  letters,  and  every  other 
place  where  he  could  think  it  might  be  ;  and  that  he  did  not 
think  he  had  seen  it  since  he  received  it,  and  believed  it 
was  lost;  Meakim  v.  Anderson,  11  Barb.  215;  or  that  a 
witness  that  had  left  the  papers  at  the  shop  of  P.,  and  that  he 
went  there  to  look  for  them,  and  saw  P.,  who  told  him  to  look 
in  his  desk  for  them,  and  when  he  did  so,  and  could  not  find 
them  there,  P.  told  him  that  he  must  have  torn  or  burned  them 
up;  Bridges  v.  Hyatt,  2  Abb.  (N.  Y.)  Pr.  449  ;  or  that  a  title- 
bond  and  receipts  of  payment,  were  last  seen  in  the  possession 
of  the  assignee  in  bankruptcy  of  their  original  holder,  and 
that  the  successor  of  said  assignee  had  been  unable  to  procure 
them,  after  diligent  inquiry,  both  of  his  predecessor  and 
others  •  Bobe  v.  Stickney,  36  Ala.  482  ;  or  that  a  paper  by 
law  in  the  custody  of  a  particular  officer  can  not  be  found 
there,  or  accounted  for  by  him.  Braintree  v.  Battles,  6  Vt. 
395  ;  a  search  of  half  an  hour  for  a  paper  in  a  lawyer's  office 
where  it  was  last  known  to  be,  without  finding  it;  Sturdevant 
v.  Gaines,  5  Ala.  435  ;  or  generally  that  the  party  had  ex- 
hausted, to  a  reasonable  degree,  all  the  sources  of  information 
and  means  of  discovery,  naturally  suggested  by  the  nature  of 
the  case  and  accessible  to  the  party;  Falsom  v.  Scott,  6  Cal. 
460  ;  are  sufficient  to  let  in  secondary  evidence.  But  a  hasty 
search,  with  a  belief  that  a  deed  could  be  found  if  well  looked 
for;  Hindsv.  Evans,  2  Spears  (S.  C.)  17  ;  or  the  testimony  of  a 
clerk  that  he  had  the  oversight  of  his  master's  papers,  and  had 
been  unable  to  find  the  paper  in  question  ;  Hanson  v.  Kelly,  3 
Me.  456  ;  or  evidence  that  the  library  and  papers  of  the  party 
were  destroyed  by  fire,  except  a  few  papers,  accompanied  bv 
evidence  of  search  for  the  particular  paper ;  Id. ;  or  where  the 
evidence  is  such  as  to  leave  the  mind  in  doubt  whether,  by  a 
further  search,  books  of  record  might  not  be  found,  pare  I  evi- 
dence of  their  contents  will  not  be  admitted.  State  v  Way- 
man ;  2  Gill  &  J.  254;  or  a  search  for  a  lost  paper  made 
more  than  a  year  before  the  trial,  is  not  sufficient  to  justify 
the  introduction  of  secondary  evidence  of  the  paper;  Porter 
v.  Wilson,  13   Pa.  St.  641  ;   or  proof  that  the  clerk  of  a  court 


PRIMA RY  AND  SE CONDA RY  E VI PENCE.    8 1 7 

was  called  who  said  he  was  president  of  a  literary 
institution,  which  consisted  of  eighty  members ;  that 
a  number  of  "  The  Nonconformist  "  was  brought  to  the 
institution,  he  did  not  know  by  whom,  and  left  there 
gratuitously ;  that,  about  a  fortnight  afterwards,  it  was 
taken  (as  he  supposed)  out  of  the  subscribers'  room 
without  his  authority,  and  was  never  returned  ;  that  he 
had  searched  the  room  for  it,  but  had  not  found  it,  and 
never  knew  who  had  it ;  and  that  he  believed  it  had 
been  lost  or  destroyed.  Under  these  circumstances, 
the  judge  at  Nisi  Prius  held  that  secondary  evidence 
of  the  contents  of  the  paper  was  admissible.  A  new 
trial  having  been  moved  for  on  the  ground  that  this 
evidence  was  improperly  received,  the  court  held  the 
ruling  to  be  right.  Alderson,  B.,  in  delivering  his 
judgment,  says  :  (/£)  "  The  question  whether  there 
has  been  a  loss,  and  whether  there  has  been  sufficient 
search,  must  depend  very  much  on  the  nature  of  the 
instrument  searched  for ;  and  I  put  the  case,  in  the 
course  of  the  argument,  of  the  back  of  a  letter.  It  is 
quite  clear  a  very  slender  search  would  be  sufficient  to 
show  that  a  document  of  that  description  had  been  lost. 
If  we  were  speaking  of  an  envelope  in  which  a  letter  had 
been  received,  and  a  person  said, '  I  have  searched  for 
it  among  my  papers :  I  can  not  find  it,'  surely  that 
would  be  sufficient.  So,  with  respect  to  an  old  news- 
paper which  had  been  at  a  public  coffee-room,  if  the 
party  who  kept  the  public  coffee-room  had  searched 
for  it  there,  where  it  ought  to  be  if  in  existence,  and 

(k)  ib.  P.  335. 
had  searched  the  records  and  found  no  judgment  in  a  cer- 
tain case,  are  not  sufficient  to  let  in  secondary  evidence  oi 
the  contents  of  written  instruments.  Fox  v.  Lambson,  8 
N.  J.  L.  (3  Hals  )  275.  The  degree  of  diligence  which  will  be 
required  will  be  regulated  by  the  value  of  the  lost  document 
Spaulding  v.  Bank  of  Susquehanna  County,  9  Pa.  St.  28. 
52 


818      SECONDARY    RULES     OF    EVIDENCE. 

where  naturally  he  would  find  it,  and  says  he  supposes 
it  has  been  taken  away  by  some  one,  that  seems  to  me 
to  be  amply  sufficient.  If  he  had  said,  '  I  know  it  was 
taken  away  by  A  B,'  then  1  should  have  said,  you 
ought  to  go  to  A  B,  and  see  if  A  B  has  not  got  that 
which  it  is  proved  he  took  away  ;  but  if  you  have  no 
proof  that  it  was  taken  away  by  any  individual  at  all, 
it  seems  to  me  to  be  a  very  unreasonable  thing  to 
require  that  you  should  go  to  all  the  members  of  the 
club,  for  the  purpose  of  asking  one  more  than  another, 
whether  he  has  taken  it  away,  or  kept  it.  I  do  not 
know  where  it  would  stop  ;  when  you  once  go  to  each 
of  the  members,  then  you  must  ask  each  of  the  serv- 
ants, or  wives,  or  children,  of  the  members,  and  where 
will  you  stop?  As  it  seems  to  me,  the  proper  limit  is 
where  a  reasonable  person  would  be  satisfied  that  they 
had  bona  fide  endeavored  to  produce  the  document 
itself;  and  therefore  I  think  it  was  reasonable  to 
receive  parol  evidence  of  the  contents  of  this  news- 
paper." Secondly.  According  to  some  authorities,  the 
object  of  a  notice  to  produce  is  not  merely  to  enable 
the  party  served  to  have  the  document  in  court ;  but 
also  that  he  may  be  enabled  to  prepare  evidence  to 
explain,  nullify,  or  confirm  it.  (/) '  This  notion  has, 
however,  been  overruled,  after  argument  and  "  full 
review  of  the  cases,  by  the  Court  of  Exchequer,  in 
a  case  of  Dwyer  v.  Collins  ;  (j?i)  in  which  it  was  held 
that  the  sole  object  of  such  a  notice  is  to  enable  the 
party  to  have  the  document  in  court  to  produce  it  if 
he  likes;  and  if  he  does  not,  then  to  enable  the  oppo- 
nent to  give  secondary  evidence.    "  If,"  said  Parke,  B. 

(/)  I  Stark.  Ev.  404,  3rd  Ed.;    Cook      Wartney  v.  Grey,  1  Stark.  283. 
.  Hearn,  1  Moo.  &  R.  201  ;    Exall  v.  (/«)  7  Exch.  639;  16  Jurist,  569. 

Partridge,   cited  arguendo   in    Doe   d. 

1  See  ante,  vol.  i.  note  1,  page  398. 


PRIMA  RY  A  ND  SECOND  A  RY  E  VIDENCE.    8 1 9 

in  delivering  the  judgment  of  the  Court,  "  this  (7.  e.  the 
reason  suggested  by  the  above  authorities)  be  the  true 
reason,  the  measure  of  the  reasonable  length  of  notice 
would  not  be  the  time  necessary  to  procure  the  docu- 
ment, a  comparatively  simple  inquiry,  but  the  time 
necessary  to  procure  evidence  to  explain  or  support 
it,  a  very  complicated  one,  depending  on  the  nature 
of  the  case  and  the  document  itself  and  its  bearing  on 
the  cause."1  And  it  was  accordingly  held  in  that  case 
that  where  a  party  to  a  suit,  or  his  attorney,  has  a  docu- 
ment with  him  in  court,  he  may  be  called  on  to  pro- 
duce it  without  previous  notice  ;  and  in  the  event  of 
his  refusing,  the  opposite  party  may  give  secondary 
evidence.3 

1  And  see  Dean  v.  Berder,  15  Tex.  298  ;  United  States  v 
Winchester,  2  McLean,  135  ;  Farnsworth  v.  Sharp,  5  Sneed. 
(Tenn.)  615  ;  Potier  v.  Barclay,  15  Ala.  439  ;  Gunier  v.  Fall, 
15  Cal.  63;  Bank  of  South  Carolina  v.  Brown,  Dudley  (Ga.) 
62  ;  Jefferson  v.  Conaway,  5  Harr.  16  ;  State  v.  Lock  wood,  5 
Blackf.  (Ind.)  145;  Kimble  v.  Joslin,  Overt  (Tenn.)  380;  Car- 
lard  v.  Cunningham,  37  Pa.  St.  288  ;  Anderson  Bridge  Co.  v. 
Applegate,  13  Ind.  339;  Patterson  v.  Linden,  14  Iowa,  414, 
Dukey  v.  Ashby,  2  A.  K.  Marsh.  (Ky.)  11 ;  Williams  v.  Benton, 
12  La.  Ann.  91  ;  Kennedy  v.  Fowke,  5  Har.  &  J.  63  ;  Robert- 
son v.  Parks,  3  Md.  Ch.  65  ;  Commonwealth  v.  Emery,  2  Gray 
(Mass.)  80;  Browne  v.  Boston,  Id.  494;  Lewire  v.  Dille,  17 
Mo.  64;  Farmers',  &c.  Bank  v.  Lonergan,  21  Id.  46;  Ford  v. 
Manson,  4  Johns.  220;   Week  v.  Lyon,  18  Barb.  530. 

"  If  a  writing  be  in  court,  no  notice  to  produce  it  is  neces- 
sary tp  let  in  parol  evidence  of  its  contents  (Dana  v.  Boyd,  2 
J.  J.  Marsh.  587);  or  where  the  Avritings  are  a  proper  matter 
of  defense  (Kellar  v.  Savage,  2  Me.  199)  ;  or  if  the  party  who 
would  otherwise  be  notified  offer  to  produce  the  papers,  and 
fails  to  do  so,  without  asking  further  time  (Dwinell  v.  Larra- 
Dee,  38  Me.  464) ;  or  where  the  party  is  charged  witli  their 
fraudulent  possession  (Gray  v.  Kernahan,  2  Mill.  (S.  C.)  Const. 
65  ;  Morgan  v.  Jones,  24  Ga.  155  ;  State  v.  Mayberry,  48  Mc. 
218;  S.  P.,  Rose  v.  Lewis,  10  Mich.  483  ;  Hart  v.  Robinett,  5 
Mo.  11  ;  Meally  v.  Greenough,  25  N.  H.  (5  Post.)  325  ;  Ham- 
mond  v.  Hopping,    13    Wend.    505  ;   Hardin   v.  Kretsinger,    17 


820      SECONDARY    RULES     OF    EVIDENCE. 

483.  The  expression  that  secondary  evidence  of  a 
document  is  receivable,  must  not  be  understood  to  mean 
that  conjectural,  or  any  other  form  of  illegal  evidence  of 
it,  will  be  received.  Secondary  evidence  must  be  legiti- 
mate evidence,  inferior  to  the  primary  solely  in  respect 
of  its  derivative  character.1  Thus,  the  copy  of  a  copy  of 
destroyed  or  lost  document  is  not  receivable  in  evi- 
dence, even  though,  as  it  seems,  the  absence  of  the  first 
copy  has  been  satisfactorily  explained,  (ti) 2  So, previous 
to  the  14  &  15  Vict.  c.  99,  s.  2,  where  a  document  was 
lost,  a  copy  of  it  made  by  the  party  to  the  suit  was  not 
admissible,  unless  proved  by  evidence  aliunde  to  be 
accurate ;  for  as  he  was  not  a  competent  witness  for 
himself,  so  what  he  wrote  could  not  be  evidence  for 
him.  (0)  And  here  it  is  of  the  utmost  importance  to 
remember  that  there  are  no  degrees  of  secondary  evi- 
dence, (p)  3     A  party  entitled  to  resort  to  this  mode  of 

(«)    Reeve    v.    Long,     Holt,    286;  (<?)  Fisher  v.  Samuda,  1  Camp.  192-3. 

Anon.,  Skinn.  174  ;  Liebman  v.  Pooley,  (/ )  Doe  d.  Gilbert  v.  Ross,  7  M.  & 

1  Stark.   167  ;    Everingham  v.  Roun-  W.  102  ;    Hall  v.  Ball,  3  Scott,  N.  R. 

dell,  2   Moo.  &  R.    138  ;    Gilb.  Ev.  9,  577  ;    Brown  v.  Woodman,  6  Car.  & 

4th  Ed.  P.  206. 

Johns.  293;  Edwards  v.  Bonneau,  1  Sandf.  (N.  Y.)  610;  For- 
ward v.  Harris,  30  Barb.  338;  Pickering  v.  Myers,  2  Bailey  (S. 
C.)  113  ;  Hamilton  v.  Rice,  15  Tex.  382)  ;  nor  in  an  action  to 
recover  the  amount  of  a  forged  bank  note  (Luckett  v.  Clark, 
Litt.  (Ky.)  Select  Cases,  178);  nor  if  the  document  is  hope- 
lessly lost,  or  out  of  the  possession  of  parties  or  the  jurisdic- 
tion of  the  court  (McCreery  v.  Hood,  5  Blackf.  116;  McCaulay 
v.  Earnhart,  1  Jones  (N.  C.)  L.  502  ;  and  see  Bowman  v.  Welt- 
ing, 39  111.  416;  Mitchell  v.  Jacobs,  17  Id.  236;  Shepherd  v. 
Giddings,  22  Conn.  282. 

1  The  rule  of  law,  that  the  best  evidence  which  the  nature 
of  the  case  admits  must  be  produced,  applies  as  well  to  sec- 
ondary as  to  primary  evidence.  Coman  v.  State,  4  Blackt. 
(Ind.)  241. 

2  So  a  copy  of  a  copy  of  a  muster  roll  is  not  competent 
evidence  to  show  that  a  man  enrolled  therein  is  a  United 
States  soldier.     Orman  v.  Riley,  15  Cal.  48. 

3  Carpenter  v.  Dame,  10  Ind.  125.     But  whenever  this  rule 


PRIMA RY  A ND  SE CONDA RY  E VIDENCE.    82 1 

proof  may  use  any  form  of  it ;  his  not  adducing,  or  even 
willfully  withholding  some  other,  likely  to  be  mo  resat- 
isfactory,  is  only  matter  of  observation  for  the  jury. 
Thus  the  evidence  of  a  witness  who  has  read  a  de- 
troyed  or  lost  document  is  perfectly  receivable,  al- 
though a  copy  or  abstract  of  it  is  in  existence,  and 
perhaps  even  in  court.  This  rule,  so  elementary  in 
its  nature,  was  not  established  until  the  case  of  Doe  d. 
Gilbert  v.  Ross  (q)  in  1840  ;  previous  to  which,  how- 
ever, various  dicta  were  to  be  found  on  the  subject, 
and  the  prevailing  opinion  was  rather  the  other  way. 
(r)  But  that  decision  is  in  perfect  accordance  with 
the  general  principles  of  evidence,  and  a  contrary  doc- 
trine would  open  the  widest  door  to  fraud  and  chicane 
At  the  trial  of  the  case  on  the  circuit,  in  order  to  prove, 
by  secondary  evidence,  the  contents  of  a  marriage 
settlement, — a  copy  which  was  tendered  having  been 
rejected  for  want  of  a  stamp, — a  short-hand  writer's 
notes  of  a  former  trial,  at  which  the  settlement  was 
proved,  were  offered  and  received  by  the  judge.  The 
jury  having  found  for  the  plaintiff,  it  was  objected 
before  the  court  in  banc  that  this  evidence  ought  not 
to  have  been  received,  especially  as  it  appeared  that  a 
copy  of  the  settlement  was  in  existence ;  and  several 
of  the  previous  dicta  were  cited.     The  court,  however 

(q)  7  M.  &  W.  102.  author  in  the  Monthly  Law  Mag.,  vol 

(r)  The  cases  were  collected  by  the      4,  p.  265. 

is  invoked  against  a  party,  he  is  permitted  to  show  that  what 
appears  to  be,  is  not  in  fact,  a  higher  degree  of  secondary  evi- 
dence. Harvey  v.  Thorpe,  28  Ala.  250.  Where  a  way  bill  is 
a  copy  of  a  copy,  oral  evidence  of  the  weight  of  the  goods  de- 
scribed in  such  bill  is  admissible.  Young  v.  Mertens,  27  Md. 
114.  A  plat  of  survey  purporting  to  be  an  extract  from  an 
approved  map  of  a  particular  township,  certified  by  the  regis- 
ter of  the  land  office,  is  inadmissible  as  evidence,  it  being  only 
the  copy  of  a  copy.     Lawrence  v.  Grout,  12  La.  Ann.  835. 


822      SECONDARY    RULES    OF    EVIDENCE. 

refused  even  a  rule  to  show  cause  on  this  point , 
Parke,  B.,  in  the  course  of  the  argument,  observing  to 
the  counsel  :  (s)  "  You  must  contend,  then,  that  there 
is  to  be  primary,  secondary,  and  tertiary  evidence.  It 
an  attested  copy  is  to  be  one  degree  of  secondary 
evidence,  the  next  will  be  a  copy  not  attested  ;  and 
then  an  abstract:  then  would  come  an  inquiry, wheth- 
er one  man  has  a  better  memory  than  another,  and 
we  should  never  know  where  to  stop."  And  in  de- 
livering judgment  the  same  judge  expressed  himself 
thus :  "  As  soon  as  you  have  accounted  for  the 
original  document,  you  may  then  give  secondary  evi- 
dence of  its  contents.  When  parol  evidence  is  then 
tendered,  it  does  not  appear  from  the  nature  of  such 
evidence,  that  there  is  any  attested  copy,  or  better 
species  of  secondary  evidence  behind.  We  know  of 
nothing  but  of  the  deed  which  is  accounted  for,  and 
therefore  the  parol  evidence  is  in  itself  unobjectionable. 
Does  it  then  become  inadmissible,  if  it  be  shown  from 
other  sources,  that  a  more  satisfactory  species  of  sec- 
ondary evidence  exists  ?  I  think  it  does  not;  and  I 
have  always  understood  the  rule  to  be,  that  when  a 
party  is  entitled  to  give  secondary  evidence  at  all,  he 
may  give  any  species  of  secondary  evidence  within 
his  power."  And  Alderson,  B.,  said,  "  I  agree  with  my 
brother  Parke,  that  the  objection  must  arise  from  the 
nature  of  the  evidence  itself.  If  you  produce  a  copy 
which  shows  that  there  was  an  original,  or  if  you  give 
parol  evidence  of  the  contents  of  a  deed,  the  evidence 
itself  discloses  the  existence  of  the  deed.  But  reverse 
the  case, — the  existence  of  an  original  does  not  show 
the  existence  of  any  copy  ;  nor  does  parol  evidence  ot 
the  contents  of  a  deed  show  the  existence  of  anything 
except  the   deed  itself.     If  one  species  of  secondary 

(s)  7  M.  &  W.  105. 


PRIMA  RY  A  ND  SECOND  A  RY  E  VIDENCE.    823 

evidence  is  to  exclude  another,  a  party  tendering  parol 
evidence  of  a  deed,  must  account  for  all  the  secondary 
evidence  that  has  existed.  He  may  know  of  nothing 
but  the  original,  and  the  other  side,  at  the  trial,  may 
defeat  him  by  showing  a  copy,  the  existence  of  which 
he  had  no  means  of  ascertaining.  Fifty  copies  may  be 
in  existence  unknown  to  him,  and  he  would  be  bound 
to  account  for  them  all."  (J) 

484.  There  are  several  exceptions  to  the  rule 
which  requires  primary  evidence  to  be  given.  The 
following  are  the  principal :  First,  where  the  produc- 
tion of  it  is  physically  impossible,  as  where  characters 
are  traced  on  a  rock  ;  or,  secondly,  where  it  would  be 
highly  inconvenient  on  physical  grounds,  as  where 
♦"hey  are  engraven  on  a  tombstone,  («)  or  chalked  on 


(/)  In  some  parts  of  America  they 
take  a  sort  of  middle  course  about  this, 
which  is  thus  described  in  I  Greenl. 
Ev.  $  81,  note  (2),  7th  Ed.:  "The 
American  doctrine,  as  deduced  from 
various  authorities,  seems  to  be  this  : 
that  if,  from  the  nature  of  the  case  it- 
self, it  is  manifest  that  a  more  satisfac- 
tory kind  of  secondary  evidence  exists, 
the  party  will  be  required  to  produce 
it  ;  but  that  where  the  nature  of  the 
case  does  not  of  itself  disclose  the  ex- 
istence of  such  better  evidence,  the 
objector  must  not  only  prove  its  exist- 
ence, but  also  must  prove,  that  it  was 
known  to  the  other  party  in  season  to 
have  been  produced  at  the  trial.  Thus, 
where  the  record  of  a  conviction  was 
destroyed,  oral  proof  of  its  existence 
was  rejected,  because  the  law  required 
a  transcript  to  be  sent  to  the  Court  of 
Exchequer,  which  was  better  evidence. 
A  grant  of  letters  of  administration 
was  presumed  after  proof  from  the  re- 
cords of  various  courts,  of  the  admin- 
istrator's   recognition     there,    and    his 


acts  in  that  capacity  ;  and  where  the 
record  books  were  burnt  and  mutila- 
ted, or  lost,  the  clerk's  docket  and  the 
journals  of  the  judges  have  been  deemed 
the  next  best  evidence  of  the  con- 
tents of  the  record.  In  all  these,  and 
the'  like  cases,  the  nature  of  the  fact 
to  be  proved,  plainly  discloses  the  ex- 
istence of  some  evidence  in  writing, 
of  an  official  character,  more  satisfac- 
tory than  mere  oral  proof;  and  there- 
fore the  production  of  such  evidence 
is  demanded.  But  where  there  is  no 
ground  for  legal  presumption  that  bet- 
ter secondary  evidence  exists,  any 
proof  is  received,  which  is  not  inad- 
missible by  other  rules  of  law  ;  unless 
the  objecting  party  can  show  that  bet- 
ter evidence  was  previously  known  to 
the  other,  and  might  have  been  pro- 
duced,  thus  subjecting  him,  by  posi- 
tive proof,  to  the  same  imputation  of 
fraud,  which  the  law  itself  presumes 
when  primary  evidence  is  withheld." 

(u)  Tracy  Peerage  case,  10  CI.  &  ¥ 
154- 


824     SECONDARY    RULES    OF    EVIDENCE. 

a  wall  or  building,  (v)  or  contained  in  a  paper  perma- 
nently fixed  to  it,  (x)  &c. 

485.  3.  The  most  important  and  conspicuous  ex- 
ception, however,  is  with  respect  to  the  proof  of  rec- 
ords, (j/)  and  other  public  documents  of  general  con- 
cernment, (z)  the  objection  to  producing  which  rests 
on  the  ground  of  moral,  not  physical  inconvenience. 
They  are,  comparatively  speaking,  little  liable  to  cor- 
ruption, alteration,  or  misrepresentation,  the  whole 
community  being  interested  in  their  preservation,  and, 
in  most  instances,  entitled  to  inspect  them  ;  while  pri 
vate  writings,  on  the  contrary,  are  the  objects  of  inter- 
est but  to  few  whose  property  they  are,  and  the  in- 
spection of  them  can  only  be  obtained,  if  at  all,  by 
application  to  a  court  of  justice.  The  number  of  per- 
sons interested  in  public  documents,  also  renders  them 
much  more  frequently  required  for  evidentiary  pur- 
poses ;  and  if  the  production  of  the  originals  were  in- 
sisted on,  not  only  would  great  inconvenience  result 
from  the  same  documents  being  wanted  in  different 
places  at  the  same  time,  but  the  continual  change  of 
place  would  expose  them  to  be  lost,  and  the  handling 
from  frequent  use  would  soon  ensure  their  destruction. 
For  these  and  other  reasons,  (a)  the  law  deems  it  bet- 

(v)   Mortimer  v.  M'Callan,  6   M.  &  tions  shall  be  intended  in  them.     Dr. 

W.  58,  63  and  68  ;  Sayer  v.  Glossop,  2  Leyfield's  case,  10  Co.  92  b  ;    B.  N.  P. 

Exch.   411,   per    Rolfe,    13.;    Bruce    v.  227.     But  though  this  may  be  one  rea« 

Nicolopulo,  11  Exch.  129.  son,  it  is  neither  the  only  nor  the  prin- 

(x)  R.  v.  Fursey,  6  C.  &  P.  84  ;  Jones  cipal  one.     The  actual  record  must  be 

v.  Tarleton,  9  M.  &  W.  675.  produced  on  an  issue  of  mil  tiel  record 

{)')  Dr.  Leyfield's  case,  10  Co.  92  b  ;  in  the  same  court  ;  and  although  it  is 

Doct.    Placit.    201,   206  ;    Leighton   v.  a    prresumptio    juris   et   de  jure,  that 

Leighton,  1  Str.  210.  officers  of  courts   of  justice   make   up 

(z)   Mortimer  v.  M'Callan,  6   M.  &  their  records  accurately,  and  keep  them 

W.  58  ;    Lynch    v.   Clarke,   Holt,  293  ;  from  being  tampered  with,  so  strong  a 

3  Salk.  154.     See  infra*  presumption  could  hardly  be  made  in 

(a)  It  is  said  in  some  books  that  the  favor  of  public  books  and  documents 

reason  why  records  may  be  proved  by  not  of  a  judicial  character, 
a  copy  is,  that  no  erasure  or  interlinea 


PRIMARY  AND  SECONDARY  EVIDENCE.  825 

ter  to  allow  their  contents  to  be  proved  by  derivative 
evidence,  and  to  run  the  chance,  whatever  that  may 
be,  of  errors  arising  from  inaccurate  transcription, 
either  intentional  or  casual.  But,  true  to  its  great 
principle  of  exacting  the  best  evidence  that  the 
nature  of  the  matter  affords,  the  law  requires  this  de- 
rivative evidence  to  be  of  a  very  trustworthy  kind, 
an1  has  defined  with  much  precision  the  forms  of  it 
which  may  be  resorted  to  in  proof  of  the  different 
sorts  of  public  writings.  (<$)  Thus  it  must,  at  least  in 
general,  be  in  a  written  form,  i.  e.,  in  the  shape  of  a 
copy,  and,  as  already  mentioned,  (V)  must  not  be  a 
copy  of  a  copy.  In  very  few,  if  in  any  instances,  is 
oral  evidence  receivable  to  prove  the  contents  of  a 
record  or  public  book  which  is  in  existence.1 

{b)  At  first  sight  this  may  appear  at  exclude  this  evidence,  by  showing  that 

variance    with    the  maxim    that   there  a  copy  of  the  document  was  in  exist- 

are  no  degrees  in  secondary  evidence  ;  ence,   which  perhaps   was  even  made 

but  it  does  not  fall  within  its  principle.  the  day  before  the  trial,  with  the  view 

E.g.,  a  party  wants  to  prove  the  con-  of  enabling  him  to  raise  the  objection, 

tents  of  a  private  document  in  the  pos-  See  supra,  %  4S3.     Rut  this  reasoning 

session  of  his   adversary,  who  refuses  can  not  apply  in  the   case  of  a  pztblic 

to  produce  it  ;    and   for    this  purpose  document,  which   is  kept  in   a  known 

calls  a  witness,  who  offers  to  state    its  place,    where  every   one  may    inspect 

contents  from  memory.     How  unjust  and  obtain  a  copy  of  it. 
would  it  be  if  the  opposite  party  could  (c)  Supra,  §  4S3. 

1  This  rule  applies  to  all  orders,  judgments,  and  decrees  of  a 
court  of  record.  Ludlow  v.  Johnston,  3  Ohio,  553  ;  Brown  v. 
Wright,  4  Yerg.  57.  An  order  of  court  nunc  pro  tunc,  can 
not  be  established  upon  mere  parol  of  what  was  ordered  to 
be  done  at  a  previous  term.  The  minutes  of  record  of  the 
court  must  be  produced,  or  proved  to  be  lost  or  destroyed. 
Ludlow  v.  Johnson,  3  Ohio,  553.  To  prove  what  the  verdict 
in  a  previous  suit  was,  and  that  there  was  no  new  trial  in  such 
suit.  Abrams  v.  Smith.  8  Blackf.  (Ind.)  95.  To  show  what 
the  parties  agreed  to  refer.  Grimes  v.  Grimes,  1  Dana  (Ky.) 
234.  The  sale  of  land  under  an  order  of  a  court  of  chancery 
Phillips  v.  Costley,  40  Ala.  4S6.  That  an  officer  was  requested 
to  serve  a  writ.     Williams  v.  Cheeseborough,  4  Conn.  356. 

The   proceedings  of  the   court  of  admiralty,  before    whom 


826     SECONDARY    RULES     OF    EVIDENCE. 

486.  The  principal  sorts  of  copies  used  for  the 
proof  of  documents  are  :  1.  Exemplifications  under 
the  great  seal.     2.  Exemplifications  under  the  seal  of 

was  tried  the  question  of  prize  or  no  prize,  is  the  best  evi- 
dence in  an  action  on  a  policy  of  insurance.  Massonier  v. 
Union  Ins.  Co.,  1  Nott.  &  M.  (S.  C.)  155.  To  show  what  were 
the  pleadings  in  the  court  below  on  error  to  a  superior  court. 
Beach  v.  Baldwin,  9  Conn.  476.  To  show  when  a  suit  was  in- 
stituted, declaration  filed,  or  judgment  rendered.  Sherman  v. 
Smith,  20  111.  350.  Where  it  is  sought  to  connect  a  suit  be- 
fore a  justice,  dismissed  by  reason  of  a  plea  of  title,  with  a 
suit  subsequently  prosecuted  for  the  same  cause  in  the  com- 
mon pleas,  the  written  proceedings  before  the  justice  must  be 
produced  ;  the  facts  can  not  be  established  by  parol.  Webb 
v.  Alexander,  7  Wend.  (N.  Y.)  2S1. 

The  discontinuance  of  an  action  entered  in  court  must  be 
proved  by  the  record,  or  an  authenticated  transcript.  Shields 
v.  Frink,  12  Pick.  (Mass.)  568.  The  agreement  of  counsel  at 
an  argument  upon  a  writ  of  habeas  corpus  that  the  superior 
court  at  the  trial  of  the  prisoner  refused  to  allow  exceptions, 
is  not  competent  evidence  that  the  superior  court  made  such 
a  ruling,  but  such  decision  must  appear  by  the  records  of  that 
court.  Fleming  v.  Clark,  12  Allen  (Mass.)  191.  In  a  suit  for 
the  possession  of  a  chattel,  the  defendant  can  not  show  by 
parol  that  it  was  taken  from  the  plaintiff  and  placed  in  his 
possession  by  legal  process,  but  must  produce  a  copy  of  the 
process.  Wynne  v.  Aubuchon,  23  Mo.  30.  The  record,  or  a 
cow  of  it,  is  the  best  evidence  of  the  fact  that  a  person  has 
been  bound  over  for  his  appearance  at  court,  to  answer  to 
charges  of  perjury.  Smith  v.  Smith,  43  N.  H.  536.  The  only 
legal  evidence  of  the  terms  of  an  order  of  court  is  the  record, 
or  a  duly  certified  copv  thereof.     Michener  v.  Llovd,  16  N.  J. 

Eq.  38. 

A  witness  can  not  testify  to  the  foreclosure  and  sale  ot 
mortgaged  premises  :  the  record  of  the  suit  is  the  proper  evi- 
dence. Kennedy  v.  Reynolds,  27  Ala.  364.  The  original 
papers  in  a  cause  are  admissible  in  evidence  where  there  is 
nothing  to  show  that  any  final  record  has  been  made.  Buf- 
fington  v.  Cook,  39  Ala.  64.  On  a  plea  of  a  former  suit  in  the 
same  court,  and  nul  tiel  record  replied,  parol  evidence  is  not 
admissible  to  prove  such  former  suit.  Alexander  v.  Foreman, 
7  Ark.  252.  In  a  suit  against  a  justice  of  the  peace  for  not 
filing  the  papers  in  an  appeal  in  time,  the  best  evidence  of  th 


PRIMARY  AND  SECONDARY  EVIDENCE.    827 

the  court  where  the  record  is.  3.  Office  copies,  i.  e.y 
copies  made  by  an  officer  appointed  by  law  for  the 
purpose.  4.  Examined  copies.  An  examined  copy  is 
a  copy  sworn  to  be  a  true  copy,  by  a  witness  who  has 
compared  it  line  for  line  with  the  original,  or  who  has 
examined  the  copy  while  another  person  read  the 
original.  The  document  must  be  in  a  character  and 
language  that  the  witness  understands,  (V)  and  he 
must  also  have  read  the  whole  of  it.  (<?)  x^ccording 
to  most  authorities,  when  the  latter  of  the  above 
modes  of  examination  is  resorted  to,  it  is  unnecessary 
to  call  both  the  persons  engaged  in  it,  or  that  they 
should  have  alternately  read  and  inspected  the  origi- 
nal and  copy,  for  that  it  ought  not  to  be  presumed 
that  any  person  would  willfully  misread  a  record.  (/") 
But  in  a  modern  case,  before  a  committee  of  privi- 
leges of  the  House  of  Lords,  where,  in  order  to  prove 
a  memorandum  roll  in  the  Court  of  Exchequer  in 
Dublin,  a  witness  produced  a  copy  of  the  roll,  which 
he  said  he  had  compared  with  the  original,  according 
to  the  usual  custom  of  the   office — the  clerk  in  the 

(d)  Crawford  Peerage  case,  2   Ho.      pi.  259. 
Lo.  Cas.  544-5.  (/)  Rolfe    v.    Dart,    2    Taunt.    52  ; 

(c?)  Nellhrop  v.  Johnson,  Clayt.  142,      Giles  v.  Hill,  1  Campb.  471,  note. 

justice's  judgment  to  the  record  or  copy  certified  by  him. 
Mills  v.  Barnes,  4  Blackf.  (Ind.)  438;  Wabash,  &c.  Canal  v. 
Reinhart,  22  Ind.  463.  The  testimony  of  a  juror  as  to  the 
issues  joined  in  a  suit  is  not  admissible,  but  the  record  of  the 
pleadings  filed  in  the  suit,  must  be  produced.  State  v.  Thomp- 
son, 19  Iowa,  299;  Stromburg  v.  Earick,  6  B.  Monr.  (Ky.)  578. 
The  record  of  the  notice  of  a  foreclosure  of  a  mortgage  is 
the  only  proper  evidence  of  the  time  of  the  foreclosure  of  the 
right  of  redemption.  Chase  v.  Savage,  55  Me.  543.  A  party 
can  not  introduce  the  testimony  of  a  solicitor  in  chancery, 
that  he  had  used  due  diligence  in  certain  chancery  proceed- 
ings, but  the  record  should  be  produced.  Duvall  v.  Peach,  1 
Gill  (Md.)  172. 


828      SECONDARY    RULES    OF    EVIDENCE. 

office  holding  the  original,  and  reading  it,  while  the 
witness  held  the  copy,  without  changing  hands — and 
what  he  heard  the  clerk  read,  corresponded  with  what 
the  witness  saw  in  the  copy — the  committee  held  that 
this  practice  was  incorrect  ;  that  the  witness  could 
not  swear  that  the  document  produced  was  a  close 
copy,  and  therefore  it  could  not  be  received  ;  that  it 
was  important  it  should  be  known  that  copies  must 
be  compared  in  a  different  manner,  viz.,  by  changing 
hands.  The  same  witness  having  said,  on  producing 
a  copy  of  a  statute  roll,  that,  besides  comparing  it  in 
the  usual  way,  in  the  office,  he  read  it  with  the  original 
himself,  the  document  was  received  as  evidence.  (^) 
The  rule  laid  down  in  that  case  is  not,  however, 
always  followed  in  practice.  5.  Copies  signed  and 
certified  as  true  by  the  officer  to  whose  custody  the 
original  is  entrusted.  6.  Photograph  copies  :  of  all 
others,  the  best  for  showing  any  peculiarities  that 
exist  in  the  original  document,  and  consequently  in- 
valuable in  cases  turning  on  those  peculiarities,  as,  for- 
instance,  when  the  original  is  suspected  of  having  been 
tampered  with  after  the  copy  has  been  taken,  &c.  An 
examination  of  the  cases  in  which  these  various  species 
of  copies  may  be  used  as  proof  of  public  or  other  doc- 
uments, would  be  altogether  foreign  to  a  work  like  the 
present ;  suffice  it  to  say  that  there  are  a  few  instances 
where  none  of  them  is  receivable,  and  the  original 
must  be  produced.  Of  these  the  principal  is,  where 
the  gist  of  a  party's  action  or  defense  lies  in  a  record 
of  the  court  where  the  canse  is,  and  issue  is  joined  on 
a  plea  of  nul  tiel  record.  Here  it  is  obvious  ■  hat  the 
reasons  which  plead  so  strongly  for  allowing  inferioi 

{g)  Slane  Peerage  case,  5  CI.   &   F.  42. 


PRIMA  RY  AND  SECOND  A  RY  E  VJDENCE.    829 

evidence  to   prove    records,  &c,   (//)   do    not    apply : 
"  Cessante  ratione  legis,  cessat  ipsa  lex."  (7)  1 

487.  Public  documents,  though  not  of  a  judicial 
nature,  such  as  registers  of  births,  marriages,  and 
deaths,  (>£)  the  books  of  the  Bank  of  England,  (/)  or 
of  the  East  India  Company,  (;;z)  bank  bills  on  the  file 
at  the  Bank,  (n)  &c.,  are,  in  general,  provable  by  exam- 
ined copies.  And  by  14  &  15  Vict.  c.  99,  s.  14,  it  is 
enacted  that,  "whenever  any  book  or  other  document 
is  of  such  a  public  nature  as  to  be  admissible  in  evi- 
dence on  its  mere  production  from  the  proper  custody, 
and  no  statute  exists  which  renders  its  contents  prov- 
able by  means  of  a  copy,  any  copy  thereof,  or  extract 
therefrom  shall  be  admissible  in  evidence  in  any  court 
of  justice,  or  before  any  person  now  or  hereafter  having 
by  law  or  by  consent  of  parties  authority  to  hear, 
receive,  and  examine  evidence,  provided  it  be  proved 
to  be  an  examined  copy  or  extract,  or  provided  it  pur- 
port to  be  signed  and  certified  as  a  true  copy  or 
extract,  by  the  officer  to  whose  custody  the  original  is 
intrusted." 

488.  By  several  modern  acts  of  parliament,  special 
modes  of  proof  are  provided  for  many  kinds  of  records 
and  public  documents.  By  "The  Documentary  Evi- 
dence Act,  1868,"  (0)  sect.  2,  it  is  enacted  as  follows  : 

(h)  Supra,  §  485.  (ni)  Shelling  v.   Farmer,  1   Str.  646; 

(»")  Co.  Litt.  70b.  note  to  the  case  of  R.  v.   Lord  Geo. 

(k)  Lynch  v.   Clarke,  Holt.    293  ;  3  Gordon,  2  Dougl.  593. 
Salk.  154  ;  Sayer  v.  Glossop,   2   Exch.  (n)  Man  v.  Gary,  3  Salk.  155. 

409.     These  documents  are  within  the  (o)  31  &  32  Vict.  c.  37.     Subject  to 

14  &  15  Vict.  c.  99,  s.   14,  cited  infra.  any  law  that  may  from  time   be  made 

See   R.  v.   Weaver,  L.    Rep.   2  C.   C  by  the  legislature  of  any  British  colony 

85.  or  possession,  this  act  is  to  be  in  every 

(/)  Mortimer  v.  M'Clellan,  6   M.  &  such  colony  and  possession  ;  sect.  3. 
W.  58. 

1  When  the  reason  for  a  law  ceases,  the  law  itself  ceases 
to  be  binding. 


830     SECONDARY    RULES     OF    EVIDENCE. 

"  Prima  facie  evidence  of  any  proclamation,  order,  or 
regulation  issued  before  or  after  the  passing  of  this 
act  by  her  majesty  or  by  the  privy  counsel,  also 
of  any  proclamation,  order,  or  regulation,  issued 
before  or  after  the  passing  of  this  act,  by  or 
under  the  authority  of  any  such  department  of 
the  government,  or  officer  as  is  mentioned  in  the  first 
column  of  the  schedule  hereto,  (/)  may  be  given  in 
all  courts  of  justice,  and  in  all  legal  proceedings  what- 
ever, in  all  or  any  of  the  modes  hereinafter  mentioned, 
that  is  to  say : 

"  i.  By  the  production  of  a  copy  of  the  '  Gazette,' 
purporting  to  contain  such  proclamation,  order,  or 
regulation. 

"  2.  By  the  production  of  a  copy  of  such  procla- 
mation, order,  or  regulation,  purporting  to  be  printed 
by  the  government  printer,  or,  where  the  question 
arises  in  a  court  in  any  British  colony  or  possession, 
of  a  copy  purporting  to  be  printed  under  the  author- 
ity of  the  legislature  of  such  British  colony  or  posses- 
sion. 

"  3.  By  the  production,  in  the  case  of  any  procla- 
mation, order,  or  regulation  issued  by  her  majesty  or  by 
the  privy  counsel,  of  a  copy  or  extract  purporting  to  be 
certified  to  be  true  by  the  clerk  of  the  privy  council,  or 
by  any  one  of  the  lords  or  others  of  the  privy  council, 
and,  in  the  case  of  any  proclamation,  order,  or  regula- 
tion issued  by  or  under  the  authority  of  any  of  the 
said  departments  or  officers,  by  the  production  of  a 
copy  or  extract  purporting  to  be  certified  to  be  true, 
by  the  person  or  persons  specified  in  the  second  column 

(p  )  I.  e.  .  Secretaries  of  State  ; 

The  Commissioners  of  the  Treasury ;  Committee    of     Privy     Council     for 

The  Commissioners  for  executing  the  Trade  ; 

Office  of  I  ord  High  Admiral  ;  The  Poor  Law  Board. 


PRIMARY  AND  SECONDARY  EVIDENCE.    831 

of  the  said  Schedule  in  connection  with  such  depart- 
ment or  officer,  {jj) 

"Any  copy  or  extract  made  in  pursuance  of  this  act 
may  be  in  print  or  in  writing,  or  partly  in  print  and 
partly  in  writing. 

"  No  proof  shall  be  required  of  the  hand-writing  01 
official  position  of  any  person  certifying,  in  pursuance 
of  this  act,  to  the  truth  of  any  copy  of  or  extract  from 
any  proclamation,  order,  or  regulation." 

By  the  7th  section  of  the  statute  14  &  15  Vict.  c.  99, 
it  is  enacted,  that  "  All  proclamations,  treaties,  and 
other  acts  of  state,  of  any  foreign  state  or  of  any  British 
colony,  and  all  judgments,  decrees,  orders,  and  other 
judicial  proceedings  of  any  court  of  justice  in  any 
foreign  state  or  in  any  British  colony,  and  all  affidavits, 
pleadings,  and  other  legal  documents  filed  or  deposited 
in  any  such  court,  may  be  proved  in  any  court  of 
justice,  or  before  any  person  having  by  law  or  by  con- 
sent of  parties  authority  to  hear,  receive,  and  examine 
evidence,  either  by  examined  copies  or  by  copies 
authenticated  as  hereinafter  mentioned;  that  is  to  say, 
if  the  document  sought  to  be  proved  be  a  proclama- 
tion, treaty,  or  other  act  of  state,  the  authenticated 
copy  to  be  admissible  in  evidence  must  purport  to  be 
sealed  with  the  seal  of  the  foreign  state  or  British 
colony  to  which  the  original  document  belongs;  and 
if  the  document  sought  to  be  proved  be  a  judgment 
decree,  order,  or  other  judicial  proceeding  of  any 
foreign  or  colonial  court,  or  an  affidavit,  pleading,  or 

{(/)  I.  e. :  State  ; 

Any  Commissioner,  Secretary,  or  As-  Any    Member   of  the    Committee   ol 

sistant  Secretary  of  the  Treasury.  Privy    Council    for    Trade,   'or    any 

Any  of  the  Commissioners  for  execut-  Secretary  or  Assistant   Secretary  of 

ing  the  Office  of  Lord  High  Admiral  the  said  Committee  ; 

or  either  of   the  Secretaries    to   the  Any  Commissioner  of  the  Poor    Law 

said  Commissioners  ;  Board,  or  any  Secretary  or  Assistant 

A.ny  Secretary  or  Under  Secretary  of  Secretary  of  the  said  Board 


832      SECONDARY    RULES     OF    EVIDENCE. 

other  legal  document  filed  or  deposited  in  any  such 
court,  the  authenticated  copy  to  be  admissible  in  evi- 
dence must  purport  either  to  be  sealed  with  the  seal  of 
the  foreign  or  colonial  court  to  which  the  original 
document  belongs,  or,  in  the  event  of  such  court 
having  no  seal,  to  be  signed  by  the  judge,  or,  if  there 
be  more  than  one  judge,  by  any  one  of  the  judges  or 
the  said  court,  and  such  judge  shall  attach  to  his  signa- 
ture a  statement  in  writing  on  the  said  copy  that  the 
court  whereof  he  is  a  judge  has  no  seal ;  but  if  any  of 
the  aforesaid  authenticated  copies  shall  purport  to  be 
sealed  or  signed  as  hereinbefore  respectively  directed, 
the  same  shall  respectively  be  admitted  in  evidence  in 
every  case  in  which  the  original  document  could  have 
been  received  in  evidence,  without  any  proof  of  the 
seal  where  a  seal  is  necessary,  or  of  the  signature,  or 
of  the  truth  of  the  statement  attached  thereto,  where 
such  signature  and  statement  are  necessary,  or  of  the 
judicial  character  of  the  person  appearing  to  have  made 
such  signature  and  statement."  The  12th  section 
relates  to  proof  of  the  register  of  British  vessels.  And 
by  sect.  13,  "Whenever  in  any  proceeding  whatever, 
(r)  it  may  be  necessary  to  prove  the  trial  and  convic- 
tion or  acquittal  of  any  person  charged  with  any  indict- 
able offense,  it  shall  not  be  necessary  to  produce  the  rec- 
ord of  the  conviction  or  acquittal  of  such  person,  or  a 
copy  thereof,  but  it  shall  be  sufficient  that  it  be  certified 
or  purport  to  be  certified  under  the  hand  of  the  clerk  of 
the  court,  or  other  officer  having  the  custody  of  the  rec- 
ords of  the  court  where  such  conviction  or  acquittal  took 
place,  or  by  the  deputy  of  such  clerk  or  other  officer,  that 
the  paper  produced  is  a  copy  of  the  record  of  the  indict- 
ment, trial,  conviction,  and  judgment  or  acquittal,  as 
the  case  may  be,  omitting  the  formal  parts  thereof." 

(r)  That  is.  either  civil  or  criminal.     Richardson  v.  Willis,  L.  Rep.,  8  Ex.69 


PRIMA  R  Y  A  ND  SECOND  A  RY  EJ  ^IDENCE.    8  3  3 

The  8  &  9  Vict.  c.  1 13,  s.  3,  enacts,  "All  copies  of 
private  and  local  and  personal  acts  of  parliament  nol 
public  acts,  if  purporting  to  be  printed  by  the  queen's 
printers,  and  all  copies  of  the  journals  of  either  house 
of  parliament,  and  of  royal  proclamations,  purporting 
to  be  printed  by  the  printers  to  the  crown  or  by  the 
printers  to  either  house  of  parliament,  or  by  any  01 
either  of  them,  shall  be  admitted  as  evidence  thereof 
by  all  courts,  judges,  justices,  and  others,  without  any 
proof  being  given  that  such  copies  were  so  printed." 

Of  these  and  similar  enactments,  of  which  a  large 
number  are  to  be  found  in  the  recent  statute  books, 
{s)  it  is  to  be  observed  that  in  general  they  are  cumu- 
lative, not  substitutionary  ;  i.  e.,  they  do  not  abolish 
the  common-law  mode  of  proof,  and  only  provide  a 
more  easy  or  summary  one,  of  which  parties  mav.  if 
they  please,  avail  themselves.  (/) 

489.  4.  Another  exception  is  in  the  case  of  public 
officers.  It  is  a  general  principle  that  a  person's  acting 
in  a  public  capacity,  is  prima  facie  evidence  of  his  hav- 
ing been  duly  authorized  so  to  do ;  and  even  though 
the  office  be  one  the  appointment  to  which  must  be 
in  writing,  it  is  not,  at  least,  in  the  first  instance,  neces- 
sary to  produce  the  document,  or  account  for  its  non 
production.  The  grounds  of  this  have  been  examined 
in  another  place.  («) 

490.  5.  Where  a  witness  is  being  interrogated  on 
the  voir  dire,  with  the  view  of  ascertaining  his  compe- 
tency, if  that  competency  depends  on  written  instru- 
ments, he  may  state  their  nature  and  contents,  (z/) 

491.  The  principle  of  the  rule  in  question   being 

(s)  See  one  of  the  latest,  the  "  Muni-  {tt)  Supra,  ch.  2,  sect.  2,  sub-sect.  4, 

pal  Corporations'  Evidence  Act,  1873,"  §  356. 

36  &  37  Vict.  c.  33.  (v)  Tayl.  Evid.  £§  433  &   1242,  4th 

If)  See  31  &  32  Vict.  c.  37,  s.  6.  Ed.     See  also  per  Maule,  J.   in   Mac 


donnell  v.  Evans,  IT  C.  B.  030. 


53 


834      SECONDARY    RULES    OF    EVIDENCE. 

that  the  secondary  evidence  borrows  its  force  from  the 
primary,  of  which,  owing  to  the  general  infirmity  of  all 
derivative  proof,  it  may  not  be  a  perfect  representation 
it  follows  that  circumstantial  evidence,  when  original 
and  proximate  in  its  nature,  is  not  affected  by  the  rule. 
(x)  It  is  evidence  in  the  direct,  not  in  the  collateral 
line,  which  falls  within  the  exclusion.  For  the  same 
reason  it  seems — although  much  has  been  said  and 
written  on  both  sides  of  the  question — that  self- 
disserving  statements  by  a  party  against  his  own 
interest,  are  receivable  as  primary  proof  of  documents. 
But  this  will  be  considered  under  the  head  of  self- 
regarding  evidence,  (y) 

(x)  Bk.    I,  pt.   I,  s.  88  et  seq.,  and  {.y)  Infra,  ch.  7. 

tut>ra,  ch.  1,  §  295. 


DERIVATIVE    EVIDENCE.  835 


CHAPTER    IV. 

DERIVATIVE    EVIDENCE    IN    GENERAL. 


PARAGRAPH 

Infirmity  of  derivative  or  second-hand  evidence 492 

Forms  of  it  ...........  492 

General  rule — Not  receivable  as  evidence  in  causa         ....  493 

Reasons  commonly  assigned  for  this 493 

True  grounds  of       .....  ....  494 

Maxim  "  hearsay  is  not  evidence "  495 

Inaccuracy  of  it        .... 495 

Hearsay  often  confounded   with  res  gestae         ....  495 

Common  rumor,  when  evidence     .......  495 

Exceptions  to  the  rule  excluding  derivative  or  second-hand  evidence  496 

1.  Evidence  of  deceased  witness  on  former  trial  between  the 

same  parties 496 

2.  Matters  of  public  and  general  interest 497 

Must   be  "  ante  litem  motam  ".....  497 

3.  Matters  of  pedigree 498 

Must   be  "  ante  litem  motam  " 498 

4.  Ancient  possession      .........  499 

5.  Declarations  by  deceased  persons  against  their  interest          .  500 

6.  Declarations  by  deceased  persons  in  the  regular  course  of 

business,  &c       ........  501 

It  seems  not   be   in  a  written  form 502 

7.  Tradesmen's    books         ........  503 

8.  Books  of  deceased  incumbent 504 

9.  Dying   declarations         ........  505 

492.  The  infirmity  of  derivative  or  second-hand 
evidence,  as  compared  with  its  original  source,  has 
been  shown  in  the  Introduction  to  this  work  ;  (a)  and 
the  danger  of  this  kind  of  proof  increases  according 
to  its  distance  from  that  source,  and  the  number  of 
media  or  instruments  through  which   it  comes  to  the 

(a)  Irtrod.  pt.  I,  §§  29   30  ;  pt.  2,  §  51. 


836     SECONDARY    RULES     OF    EVIDENCE. 

cognizance  of  the  tribunal.  (Ji)  The  five  following 
forms  of  it  were  there  enumerated  :  1.  Supposed  oral 
evidence,  delivered  through  oral.  2.  Supposed  written 
evidence,  delivered  through  written.  3.  Supposed 
oral  evidence,  delivered  through  written.  4.  Sup- 
posed written  evidence,  delivered  through  oral.  5. 
Reported  real  evidence.  The  last  of  these,  (V)  and 
the  secondary  evidence  of  documents  which  would  be 
evidence  if  produced,  (d)  have  been  already  consid- 
ered ;  and  the  present  chapter  will  be  devoted  to  the 
admissibility  of  derivative  evidence  in  general. 

493.  The  general  rule  is,  that  derivative  or  second- 
hand proofs  are  not  receivable  as  evidence  in  causa — 
a  rule  which  forms  one  of  the  distinguishing  features  of 
our  law  of  evidence,  (e)  and  the  gradual  establishment 
of  which  has  been  already  traced.  (/")  '     The  reasons 

(/>)  Introd,  pt.  1,  §§  29  and  30.  {e)  Introd.  pt.  I,  §  29,  and  bk.  I,  pt. 

(c)  See  bk.  2,  pt.  2,  §  19S.  1,  §  89. 

{d)  See  the  preceding  chapter.  {/)  Bk.  1,  pt.  2. 

1  The  difference  between  primary  and  secondary  evidence 
is  more  or  less  recognized  by  the  laws  of  every  country.  In 
"  A  code  of  Centoo  Laws,  or  ordination  of  the  Pundits,  from 
a  Persian  translation  made  from  the  original,  written  in  the 
Sanscrit  Language"  (London,  1777),  we  find  (chap.  2,  sect. 
6,  p.  109),  the  rules  laid  down  :  ''  Whosoever  has  seen  a  trans- 
action with  his  own  eyes,  or  has  heard  it  with  his  own  ears, 
such  a  person  is  a  witness.  When  a  plaintiff  or  defendant 
have  not  applied  to  a  witness,  who  is  conscious  of  any  trans- 
action, desiring  him  to  appear  as  a  witness  in  their  case;  if  the 
magistrate  or  arbitrator  summon  such  a  witness,  and  question 
him  as  to  the  circumstances  of  the  transaction,  such  part  of  the 
evidence  as  relates  to  what  he  has  seen  with  his  own  eyes,  or 
heard  with  his  own  ears,  is  approved.  When  a  person,  being 
witness  to  any  transaction,  hath  explained  the  circumstances 
ot  that  transaction  to  another  person,  the  plaintiff  or  defendant 
may  constitute  such  person  as  a  witness,  or  testify  whatever 
whs  explained  to  him  by  the  other ;  and  the  evidence  delivered  by 
such  secondary  witness  is  approved."  This  latter, which  appears 
to  be  admissible  by  the   rule,  appears  to   be  exactly  what  we 


DERIVATIVE    EVIDENCE.  837 

commonly  assigned  foi  it  are  :  1.  That  the  party  against 
whom  the  proof  is  offered,  has  no  opportunity  of  cross- 
examining  the  original  source  whence  it  is  derived ; — 
but  this  will  not  explain  the  rejection  of  second-hand 
evidence  when  it  comes  in  a  written  form.  2.  That 
assuming  the  original  evidence  truly  reported,  it  was 
not  itself  delivered  under  the  sanction  of  an  oath.  To 
this  the  same  objection  may  be  made  :  besides,  the 
derivative  evidence  would  not  be  the  more  receivable, 
if  the  orioinal  evidence  were  delivered  under  that  sane- 
tion  ;  for  the  statement  of  a  third  party  made  on  oath, 
even  in  judicio,  is  not  evidence  against  a  person  who 
was  no  party  to  the  judicial  proceeding. 

494.  The  foundations  of  the  rule  lie  much  deeper 
than  this.  Instead  of  stating  as  a  maxim  that  the  law 
requires  all  evidence  to  be  given  on  oath,  we  should  say 
that  the  law  requires  all  evidence  to  be  given  under 
personal  responsibility,  2.  e.,  every  witness  must  give 
his  testimony  under  such  circumstances  as  expose  him 
to  all  the  penalties  of  falsehood,  which  may  be  inflicted 

now  call  "hearsay  evidence."  Among  other  novel  rules  of  evi- 
dence in  the  "  Pootee  ;  or,  Compilation  of  the  Ordinances  of 
the  Pundits,"  are  the  following  :  "  In  a  suit  concerning  limits 
and  boundaries,  whoever  is  acquainted  with  the  true  state  of 
those  limits  and  boundaries,  without  being  appointed  witness  in 
the  case,  may  deliver  his  evidence.  If  a  plaintiff  or  a  defendant 
secretly  hides  a  person  where  he  may  overhear  a  discourse, 
and  then  asks  a  witness  the  true  circumstances  of  the  case,  and 
that  person  with  his  own  ears  hears  the  relation  of  the 
witness,  such  person  is  called  a  hidden  witness,  and  the  testi- 
mony of  a  hidden  witness  is  true.  He  who  is  a  witness  shall 
keep  by  him  a  written  statement  of  every  transaction  in  which 
he  is  a  witness,  that,  even  after  a  considerable  space  ot  time, 
he  may  be  enabled  to  recollect  it.  A  witness,  a  borrower  or 
principal  in  any  other  affair,  shall  write  with  his  own  hand 
an  account  of  every  affair  so  concerning  him;  if  he  docs  not 
know  how  to  write  himself,  lie  shall  cause  it  to  be  written  by 
another/'  &c,  &c. 


838      SECONDARY    RULES    OF    EVIDENCE. 


by  any  of  the  sanctions  of  truth,  (g)  Now  oaths,  so 
far  from  being  the  sole  sanction  of  truth,  are  only  a 
particular,  although  doubtless  very  effective  applica- 
cation  of  one,  namely,  the  religious  sanction  ;  (Ji)  and 
if  they  were  abolished,  the  rule  rejecting  second-hand 
evidence  ought  to  remain  exactly  as  it  is.  Indeed, 
several  classes  of  persons  are  excused  by  statute  from 
taking  oaths,  (J )  and  their  evidence,  given  on  solemn 
affirmation,  stands  on  the  same  footing  with  relation 
to  admissibility  as  if  they  had  been  sworn.  The  true 
principle,  therefore,  appears  to  be  this — that  all  second- 
hand evidence,  whether  of  the  contents  of  a  document 
or  of  the  language  of  a  third  person,  which  is  not 
connected  by  responsible  testimony  with  the  party 
against  whom  it  is  offered,  is  to  be  rejected.1  And  this 
will  explain  a  matter  which  at  first  view  seems  anoma- 
lous ;  namely,  that  the  principle  governing  secondary, 
does  not  extend  to  second-hand  evidence  ;  for  in  the 
latter  case,  no  matter  how  unanswerably  the  absence 
of  the  original  source  is  accounted  for,  the  inferior  evi- 
dence will  not  be  received.  Thus  what  A  (a  witness) 
has  heard  B  (a  stranger)  say,  is  not  only  not  admissible 

(g)  Introd.  pt.  I,  §^  16  et  seq. 
(Ji)  Introd.  pt.  2,  £§  56  et  seq. 

'  Hearsay  and  reputation  are  not  competent  to  prove  any 
fact,  except  in  questions  relating  to  public  rights.  Winter  v. 
United  States,  1  Hempst.  344;  Sherwood  v.  Houston,  41  Miss. 
59  ;  Page  v.  Parker,  40  N.  H.  47  ;  Memoney  v.  Walker,  1  N. 
J.  L.  (Coxe)  t,t>\  Claiborne  v.  Parish,  2  Wash.  146;  Mima 
Queen  v.  Hepburn,  7  Cranch,  290;  Scales  v.  Desha,  16  Ala. 
308;  Parker  v.  State,  8  Blackf.  (Ind.)  292:  Chapin  v.  Taft,  18 
Pick.  (Mass.)  379;  Wells  v.  Shipp,  1  Miss.  (Walk.)  353. 
Though  if  no  better  evidence  anywhere  exist,  hearsay  evidence 
is  admissible.  Gould  v.  Smith,  35  Me.  513.  And  evidence  as 
to  the  loss  of  a  paper,  being  directed  to  the  court  and  not  to 
the  jury,  may  be  received,  even  if  hearsay.  Bridges  v.  Hyatt, 
1  Abb.  Pr.  (N.  V.)  449- 


(2)  See  bk.  2,  pt.  1,  chap.     ,  §  166. 


DERIVATIVE    EVIDENCE.  839 

in  the  first  instance,  but  the  clearest  proof  of  the  death, 
or  of  the  complete  and  incurable  lunacy  of  B,  would 
not  render  it  admissible  The  reason  is  that,  in  the 
one  case,  the  primary  source  being  perfect  in  itself,  and 
receivable  in  evidence  if  produced,  so  soon  as  that 
source  is  exhausted,  the  evidence  offered  is  simply 
derivative  of  it,  and  excludes  all  possible  chances  of 
error  except  those  which  may  be  found  in  the  medium 
of  evidence  used.  But  when  the  document  is  one 
which  would  not  be  evidence  if  produced,  as  not  being 
traced  to  the  party  against  whom  it  is  offered  ;  or  where 
the  proof  tendered  consists  of  the  statement  of  a 
person  who  can  not  be  subjected  to  cross-examination, 
the  primary  source  is  not  exhausted,  and  derivative 
proof  is  rightly  rejected. 

495.  The  rule  in  question  is  commonly  enunciated, 
both  in  the  books  and  in  practice,  by  the  maxim 
'  Hearsay  is  not  evidence," — an  expression  inaccurate 
in  every  way,  and  which  has  caused  the  true  nature 
of  the  rule  to  be  very  generally  misunderstood.  The 
language  of  this  formula  conveys  two  erroneous 
notions  to  the  mind  ;  first,  directly,  that  what  a  person 
has  been  heard  to  say  is  not  receivable  in  evidence ; 
and,  secondly,  by  implication,  that  whatever  has  been 
committed  to  writing,  or  rendered  permanent  by  other 
means,  is  receivable — positions  neither  of  which  is 
even  generally  true.  On  the  one  hand,  what  a  man 
has  been  heard  to  say  against  his  own  interest  is  not 
only  receivable,  but  is  the  very  best  evidence  against 
him  ;  (/)  and  on  the  other,  as  already  stated,  (fc) 
written  documents  with  which  a  party  is  not  identified 
are  frequently  rejected.  Hence  it  is  that  hearsay 
evidence  is  so  often  confounded  with  res  gestae,  i.  e 
the  original  proof  of  what  has  taken  place,  and  which 

(j)  See  infra,  ch.  '/•  [k)  Supra,  §  494. 


840      SECONDARY    RULES    OF    EVIDENCE. 

the  least  reflection  will  show  may  consist  of  words  as 
well  as  of  acts.  Thus,  on  an  indictment  for  treason 
in  leading  on  a  riotous  mob,  evidence  of  the  cry  of  the 
mob  is  not  hearsay,  and  is  as  original  as  any  evidence 
can  be  ;  (/)  and  so  are  the  cries  of  a  woman  who  is 
being  ravished,  (m)  So,  where  an  action  on  a  policy 
of  insurance,  effected  by  a  deceased  person  on  his  own 
life,  was  defended  on  the  ground  that  he  had  no  in- 
terest in  the  policy  ;  evidence  that,  previous  to  effect- 
ing the  insurance,  the  deceased  had  consulted  another 
person  on  the  subject,  of  insuring  his  own  life,  was 
held  to  be  admissible  as  part  of  the  res  gestae.  (;z) 
So,  although  the  relation  of  what  a  stranger  has  been 
heard  to  say  will  be  rejected,  if  offered  as  evidence  of 
the  truth  of  his  words,  seeing  that  it  comes  obstetri- 
cante  manu  ;  yet,  whether  certain  words  were  spoken 
is  a  fact,  and  may  be  proved  as  such,  is  relevant  to  the 
issue  raised.  Thus,  although  common  rumor  can  not 
be  received  as  proof  of  a  fact, — being  hearsay  in  one 
ol  its  worst  forms, — yet  when  the  conduct  of  a  person 
is  in  question,  evidence  as  to  whether  a  certain  rumor 
had  reached  his  ears  at  a  particular  time,  may  be  per- 
fectly   receivable,     (o)  '      We    are    not    to     consider 

(/)  Case  of  Danaree  and  Purchase,  Company,  4  Jurist,  N.  S.  244,  per  Erie, 

Fcst.   Cr.   Law,   213  ;    15    Ho.  St.  Tr.  J.     And  see  Milne  v.  Leisler,  7  H.  & 

522  ;    R.  v.   Lord   George   Gordon,   21  N.  786. 
Ho.  St.  Tr.  514,  529.  (o)  2  Inst.  52  ;  T.  1  Edw.  II.  12,  tit. 

(hi)  See    Mascard.   de   Prob.    Concl.  Imprisonment  ;  Jones  v.  Perry,  2  Esp. 

23,  n.  1.  482  ;  Thomas  v.  Russell,  9  Exch.  764. 

(»)  Shilling  v.  True  Accidental  Death  See  Goodeve,  Evidence,  423. 

1  Evidence  of  rumor  or  of  common  report  of  a  fact  is  not 
admissible  if  there  be  a  presumption  that  better  evidence  may 
be  obtained  ;  Glover  v.  Millings,  2  Stew.  &  P.  28 ;  but  notoriety 
of  a  fact  may  be  proved  to  found  an  inference  of  knowledge  of 
that  fact  in  a  party.  Ward  v.  Herndon,  5  Port.  (Ala.)  32S. 
So  in  a  suit  for  injury  by  representations  as  to  a  person's  sol- 


DERIVATIVE    EVIDENCE.  841 

whether  evidence  comes  by  word  of  mouth  or  by 
writing,  but  whether  it  is  original  in  its  nature,  or  in- 
dicates any  better  source  from  which  it  derives  its 
weight. 

vency,  hearsay  was  admitted  to  prove  the  notoriety  of  the 
insolvency  in  the  neighborhood,  and  establish  a  presumption 
that  defendants  knew  it  when  they  represented  him  otherwise. 
Id.  And  see  Bennoist  v.  Darby,  12  Mo.  196;  Haws  v.  Mar- 
shall, 2  A.  K.  Marsh.  Ky.)  413;  Banta  v.  Clay,  Id.  409; 
Wuoley  v.  Bruce,  2  Bibb.  (Ky.)  105.  A  statement  merely,  that 
the  witness  was  told  a  fact  existed,  is  too  general  to  prove 
it,  even  if  common  rumor  were  sufficient.  McNeill  v. 
Arnold,  22  Ark.  477.  In  an  action  against  a  railroad  to 
recover  damages  sustained  by  means  of  a  collision  between 
a  locomotive  engine  of  the  defendants  and  a  horse  and 
carriage  on  a  highway,  the  carelessness  of  the  driver  of 
the  carriage  can  not  be  proved  by  common  reputation. 
Baldwin  v.  Western  Railroad,  4  Gray  (Mass.)  333.  A  witness 
who  has  known  a  town  for  a  great  number  of  years  may 
give  evidence  of  a  general  and  uniform  reputation  and  under- 
standing-, to  show  that  what  was  once  called  the  town  of  A 
is  now  called  the  town  of  B  ;  but  not  to  show  that  the  town 
was  covered  by  a  particular  grant.  Toole  v.  Peterson,  9  Ired. 
(N.  C.)  L.  180.  Reputation,  in  connection  with  proof  of  acts 
of  ownership,  is  admissible  to  establish  a  private  right,  in  der- 
ogation of  a  public  right.  Russell  v.  Stocking,  S  Conn.  236. 
Circumstantial  evidence  of  notoriety  is  sufficient.  Crow  v. 
Harrod,  Hard.  (Ky.)  435  5  Ogden  v.  Stublefield,  4  Ala.  40. 
Common  report  of  a  party's  intention  in  purchasing  goods 
is  not  competent  to  charge  the  vendor  with  knowledge  of  such 
intention.  Hedges  v.  Wallace,  2  Bush.  (Ky.)  442-  A  reason 
for  doing  an  act,  when  the  reason  is  founded  on  a  rumor,  is 
not  admissible  in  evidence.  The  Governor  v.  Campbell,  17 
Ala.  566.  General  reputation  is  not  competent  evidence  to 
prove  a  partnership  ;  but  the  transactions  of  parties  bearing 
on  the  point  may  be  received,  if  not  objectionable  on  general 
principles.  Hersom  v.  Henderson,  23  N.  II.  (3  host.)  498. 
The  qualities  or  value  of  a  horse  can  not  be  proved  by 
reputation.  Heath  v.  West,  26  N.  II.  (6  Fost.)  191.  Proof 
of  a  rumor  of  an  adverse  claim  to  pi  >perty  sold  is  nut 
admissible  to  affect  the  question  of  value.  Prescott  v. 
Hayes,  43  N    H.  593.     And  so  reputation  or  rumor   has   been 


842      SECONDARY    RULES    OF    EVIDENCE. 

496.  There  are  several  exceptions  to   the  rule  ex- 
cluding second-hand  evidence ;  and  it  will  be  found, 
on  examination,  that  in  most,  if  not  in  all  the  cases 
where  the  rule  has    been  relaxed,  the  derivative  evi 
dence  received,  is    guarded  by  some  security    which 

held  inadmissible  to  prove  that  a  defendant  was  at  a  certain 
time  without  money  or  credit;  Trowbridge  v.  Wheeler,  1 
Allen  (Mass.)  162  ;  or  to  prove  insanity;  Foster  v.  Brooke,  6 
Ga.  287  ;  or  to  prove  agency;  Blevins  v.  Pope,  7  Ala.  371  ; 
Perkins  v.  Stebbins,  29  Barb.  (N.  Y.)  523  ;  or  to  show  a  dan- 
gerous illness,  or  that  a  person  is  at  the  point  of  death  ;  Mos- 
ser  v.  Mosser,  32  Ala.  551  ;  or  to  show  that  a  party  who  has 
been  in  possession  of  land,  occupied  it  as  tenant,  and  had  no 
title  thereto  ;  Moore  v.  Jones,  13  Ala.  296.  General  reputation 
in  the  neighborhood  is  evidence  on  a  question  of  legitimacy, 
though  its  weight  will  depend  on  the  circumstances  of  each 
case.     Stegall  v.  Stegall,  2  Brock.  256. 

Common  reputation  in  a  family  is  evidence  of  a  marriage 
therein  ;  and  it  seems  declarations  of  one  of  the  family  are 
admissible  evidence  of  such  reputation,  made  before  the  fact 
of  marriage  was  in  controversy.  Morgan  v.  Purnell,  4 
Hawks  (N.  C.)  95.  Evidence  of  general  reputation  and  belief 
in  the  neighborhood  is  not  admissible  for  the  purpose  of  dis- 
proving the  existence  of  a  marriage.  Henderson  v.  Cargill, 
31  Miss.  367. 

That  two  lived  together  in  a  state  of  concubinage,  can 
never  be  proved  by  general  reputation.  Carrie  v.  Cumming, 
26  Ga.  690.  Evidence  of  general  reputation  is  not  admissible 
to  prove  the  relation  of  husband  and  wife,  in  an  action 
brought  under  the  statute,  for  the  use  of  a  wife,  to  recover 
money  lost  by  her  husband  on  a  wager  upon  a  horse-race. 
Davis  v.  Orme,  36  Ala.  540.  Hearsay  is  not  evidence, 
except  in  relation  to  pedigree,  custom,  or  prescription ;  or 
where  the  exceptions  to  the  rule  are  as  ancient  as  the  rule 
itself.  Everingham  v.  Mesroon,  2  Brev.  (S.  C.)  461.  That 
one  is  reported  to  be  an  Irishman,  and  has  the  brogue  of  an 
Irishman,  is  prima  facie  evidence  that  he  is  an  Irishman. 
Jackson  v.  Ely,  5  Cowan,  314.  But  the  declaration  of  a 
grandmother  of  one  who  is  charged  with  being  of  colored 
birth,  that  his  mother  was  the  offspring  of  a  white  person  and 
herself,  are  not  admissible  evidence  upon  the  question.  State 
v.   Waters,   3    Ired.  (N.    C.)    L.   455.      But  hearsay  evidence, 


DERIVATIVE    EVIDENCE.  843 

renders  it  more  trustworthy  than  derivative  evidence 
in  general.  First,  then,  on  a  second  trial  of  a  cause 
between  the  same  parties,  the  evidence  of  a  witness 
examined  at  the  former  trial,  and  since  deceased,  is 
receivable  ;  and  may  be  proved  by  the  testimony  of  a 
person  who  heard  it,  or  by  notes  made  at  the  time. 
(/)  Here  the  evidence  was  originally  delivered 
under  responsibility,  and  the  party  against  whom  it  is 
offered  had  on  a  former  occasion  the  opportunity  for 
cross-examination :  still  the  benefit  of  the  demeanor 
of  the  witness  in  giving  it  is  lost.  So  by  the  1 1  &  12 
Vict.  c.  42,  s.  1  7,  where  a  witness  who  has  been  ex- 
amined before  a  justice  of  the  peace,  against  a  person 
charged  with  an  offense,  dies  before  the  trial  of  the 
accused,  or  is  so  ill  as  to  be  unable  to  travel,  his  de- 
position, reduced  to  writing  and  signed  by  the  justice, 
may  be  received  in  evidence,  (y) 

497.  2.  The  next  exception  is  in  the  proof  of  mat- 
ters of  public  and  general  interest ;  such  as  the  boun- 
daries of  counties  or  parishes,  rights  of  common 
claims  of  highway,  &c.  (r)  '     We  have  seen  that  in 

(/)  1  Phill.  Ev.  306,  10th  Ed.  s,  4th    Ed.     See    Mascard.   de    Prob. 

(q)  Bk.  I,  pt.  i,  £  105.  Concl.  287,  395-403.     As  lo  what  are 

(r)  See   as   to   this,  very  fully,  R.  v.  public  rights,  within  the  rule  in  ques- 

Jnhabitants  of  Bedfordshire,  4  E.  &  B.  tion,  see  Lord  Dunraven  v.  Llewellyn, 

535,  542.     See  also,  1  Phill.  Ev.  ch.  8,  15  Q.  B.  791. 

sect.  3,  10th  Ed.;  Tayl.  Ev.  Part  2,  ch. 

though  admissible  to  prove  birth  and  pedigree,  is  incompe- 
tent to  create  or  destroy  a  title  to  property.  Carter  v.  Bu- 
chanan, 9  Ga.  539. 

1  When  the  question  is  upon  a  disputed  boundary  line,  the 
court  will  not  permit  hearsay  evidence  to  be  given,  that  a  par- 
ticular object  (such  as  a  spring)  was  on  the  land  of  one  ot 
the  parties.     Frazer  v.  Hunter,  5  Cranch  C.  Ct.  470. 

In  Massachusetts,  the  incorporation  of  a  town,  parish,  &c, 
may  be  proved  by  reputation,  if  it  appear  that  no  incorpo- 
rating act  can   be  found;  for  by  fires  in  Boston,  in  171 1   and 


844     SECONDARY    RULES     OF     EVIDENCE. 

proof  of  historical  facts, — of  what  has  taken  place  in 
by-gone  ages, — derivative  evidence  must  not  only  from 
necessity  be  resorted  to,  but  that  it  is  disarmed  of  much 
of  its  danger,  from  the  permanent  effects  which  are 
visible  to  confirm  or  contradict  it,  the  number  of  sources 
whence  it  may  spring,  the  number  of  persons  inter- 
ested in  preserving  the  recollection  of  the  matters  in 
question  ;  and  the  consequent  facilities  for  detecting 
false  testimony,  (s)  Now  it  is  obvious,  that  rights  of 
public  or  general  interest  which  are  supposed  to  have 
been  exercised  in  times  past,  partake  in  some  degree  of 
the  nature  of  historical  facts,  and  especially  in  this,  that 
it  is  rarely  possible  to  obtain  original  proof  of  them. 
The  law  accordingly  allows  them  to  be  proved  by 
general  reputation  : — E.  g.,  by  the  declarations  of  de- 
ceased persons  who  may  be  presumed  to  have  had  com- 
petent knowledge  on  the  subject ;  (/)  by  old  documents 

(s)  Introd.  pt.  2,  §§  50  etseq.  (t)  See  Crease  v.  Barrett,  1  C,  M.  & 

R.  919. 

1760,  many  of  the  public  records  of  the  province  were  de- 
stroyed.    Dillingham  v.  Snow,  5  Mass.  552. 

An  ancient  boundary  can  not  generally  be  proved  other- 
wise than  by  reputation;  and  evidence  going  to  show  that 
certain  lines  were  generally  reputed  to  be  the  lines  of  a  par- 
ticular ancient  survey,  is  admissible.  Smith  v.  Nowells,  2 
Litt.  (Ky.j  150.  But  evidence  that  the  line  so  established  was 
not  the  true  one.  is  not  admissible  in  certain  cases.  Tyler  v. 
Dyer,  2  Me.  41.  And  see  Lone  Star  Co.  v.  West  Point  Co.,  5 
Cal.  447  ;  Sullivan  v.  Lowder,  n  Me.  (2  Fairf.)  426;  Howell 
v.  Tilden,  1  Har.  &  M.  (Md.)  84;  Long  v.  Pellett,  Id.  531  ; 
Boston  v.  Richardson,  13  Allen  (Mass.)  146  ;  Wallace  v 
Goodall,  1 8  N.  H.  439;  Gilchrist  v.  McLaughlin,  7  Ired.  (N. 
C.)  L.  310;  Kinley  v.  Crane,  34  Pa.  St.  146;  Clements  v. 
Kyles,  13  Gratt.  (Va.)  468;  Davis  v.  Mason,  4  Pick.  156;  Dag- 
gett v.  Wei  ley,  6  Fla.  482. 

General  notoriety  of  character  is  competent  to  prove  a 
neighbor's  knowledge  of  such  character.  Slattings  v.  Slate* 
33  Ala.  425. 


DERIVATIVE    EVIDENCE.  845 

of  \arious  kinds,  which,  under  ordinary  circumstances, 
would  be  rejected  for  want  of  originality,  &c.  But  in 
order  to  guard  against  fraud,  it  is  an  established  prin- 
ciple that  such  declarations,  &c,  must  have  been  made 
"ante  litem  motarn," — an  expression  which  has  caused 
some  difference  of  opinion,  but  which  seems  to  mean 
before  any  controversy  has  arisen  on  the  subject  to 
which  the  declarations  relate,  whether  such  controversy 
has  or  has  not  been  made  the  subject  of  a  lawsuit,  (ti) J 
The  value  of  this  species  of  evidence  manifestly  depends 
on  the  degree  of  publicity  of  the  matters  in  question  ; 
and  also,  when  in  a  documentary  shape,  on  the  facilities 
or  opportunities  which  may  exist  for  substitution  or 
fabrication.2 

498.  3.  Matters  of  pedigree  ;  e.  g.,  the  fact  of  rela- 
tionship between  particular  persons ;  the  births,  mar- 
riages, and  deaths  of  members  of  a  family,  &c,  form 
the  next  exception,  (v)  "  Quoties  quaereretur,  genus 
vel  gentem  quis  haberet,  necne  eum  probare  oportet." 
(w)  These  likewise  partake  of  the  nature  of  historical 
facts  in  this,  that  they  usually  refer  to  matters  which 
have  occurred  in  times  gone  by,  and  among  persons 

(«)  r  Phill.  Ev.  194,  10th  Ed.;  Tayl.  Ed.;  Tayl.  Ev.   Part  2,  ch.  q,  4th  Ed. 

Ev.  §§  515  etseq.,  4th  Ed.;    Butler  v.  Att.-Gen.    v.  Kohler,  9   Ho.  Lo.  Cas. 

Lord   Mountgarrett,    7    Ho.   Lo.   Cas.  654,  670. 

633-  (w)  Dig.  lib.  22,  tit.  3, 1.  1. 

(v)  1   Phill.   Ev.  ch.  8,  sect.  4,  10th 

1  Testimony  touching  reputation  founded  on  opinions  ex- 
pressed post  litem  motam,  must  be  excluded.  Reid  v.  Rekl,  17 
N.  J.  E'}.  roi.  The  declaration  of  a  mother  concerning-  her 
son,  are  admissible  in  a  question  of  pedigree  when  not  made 
post  litem  motam.  Conjolle  v.  Ferrie,  26  Barb.  (N.  Y.)  177. 
Where,  in  an  action  of  ejectment,  the  demandants  claimed 
as  heirs  of  an  aunt,  then  deceased,  her  declarations  to  that 
effect  were  held  admissible  to  show  such  relationship.  Moffil 
v.  Witherspoon,  10  Ired.  (N.  C.)  L.  185. 

a  See  ante,  vol.  i.  part  iii.  p.  396. 


846      SECONDARY    RULES     OF    EVIDENCE. 

who  have  passed  away ,  though  in  attempting  to  prove 
then  by  derivative  evidence,  the  check  afforded  by 
notoiiety  is  wanting,  seeing  that  they  are  matter  of 
interest  to  only  one,  or  at  most  a  few  families.  Still 
the  extreme  difficulty  of  procuring  any  better  evidence, 
compels  the  reception  of  this,  when  it  comes  from 
persons  most  likely  to  be  acquainted  with  the  truth, 
and  under  no  temptation  to  misrepresent   it.1     Thus, 

1  Hearsay  is  evidence  in  matters  of  pedigree  and  relation 
ship  only  when  the  facts  are  ancient  and  the  witness  of  some 
kin,  or  has  some  personal  knowledge  of  the  family  of  the  de- 
ceased. Armstrong  v.  McDonald,  10  Barb.  300;  Greenwood 
v.  Spiller,  3  111.  (2  Seam.)  502  ;  Binney  v.  Ham,  A.  K.  Marsh. 
(Ky.)  322  ;  Speed  v.  Brooks,  7  J.  J.  Marsh.  (Ky.)  119;  Mooer? 
v.  Bunker,  29  N.  H.  (9  Fost.)  420  ;  Emerson  v.  White,  Id.  482 
Waldron  v.  Tuttle,  4  N.  H.  371 ;  Jackson  v.  Cooley,  8  Johns! 
(N.  Y.)  12S  ;  Kaywood  v.  Barnett,  3  Dev.  &  B.  (N.  C.)  L.  91  ; 
Strickland  v.  Poole,  1  Dall.  14;  Elliott  v.  Piersall,  1  Pet.  328; 
Kelly  v.  McGuire,  15  Ark.  555  ;  Copes  v.  Pearce,  7  Gill.  (Md.) 
247  ;  Craufurd  v.  Blackbun,  17  Md.  49;  Chapman  v.  Chapman, 
2  Conn.  347.  But  such  declarations,  to  be  evidence  of  title, 
must  not  be  general,  but  the  particular  relation.  And  see 
Conjolle  v.  Ferrie,  26  Barb.  177. 

The  hearsay  testimony  of  living  members  of  a  family,  and 
the  hearsay  of  its  deceased  members,  as  to  who  were  their  an- 
cestors, and  as  to  the  periods  of  their  deaths,  are  entitled  to 
more  weight  than  the  hearsay  of  persons  unconnected  with 
the  family.  Saunders  v.  Fuller,  4  Humph.  (Tenn.)  516;  Jack- 
son v.  Browner,  18  Johns.  (N.  Y.)  37.  Although,  in  questions 
of  pedigree,  the  declarations  of  deceased  members  of  a  family, 
as  to  marriages,  are  admitted  ;  yet,  where  the  marriage  is  to  be 
shown  as  a  substantive,  independent  fact,  it  is  the  general 
rule,  as  to  the  exclusion  of  hearsay  evidence.  Westfield  v. 
Warren,  8  N.  J.  L.  (3  Hals.)  249.  But  declarations  of  a  third 
person,  who  can  be  called  as  a  witness,  can  not  be  given  in  evi- 
dence to  prove  pedigree.  Jones  v.  Letcher,  13  B.  Mon.  (Ky.) 
363.  In  an  action  against  an  administrator  for  the  residue  01 
an  estate,  declarations  of  a  deceased  intestate  were  held  compe- 
tent to  prove  a  particular  person  his  relative,  and  the  degree 
of  consanguinity  or  affinity  between  them;  but  a  conversation 
between  deceased  and  another,  in  which  each  reckoned  up 
their  descents,  when   the   deceased   remarked.  "  If  that  be  the 


DERIVATIVE    EVIDENCE.  847 

declarations  of  deceased  members  of  a  family,  {x) 
made  "  ante  litem  motam,"  (jj/)  and  not  made  by  the 
declarant  obviously  for  his  own  interest ;  {£)  the  gen- 

(x)  Before  such  a  declaration  can  be  be  prima  facie  proof  of  the   relation- 

jdmitted  in  evidence,  the  relationship  ship  of  the  declarant,     riant  v.  Taylor, 

of  the  declarant   de  jure,  by  blood  or  7    H.    &    N.    211,    237;     Hitchins    v. 

marriage,  must  be  established  by  some  Eardley,  L.  Rep.,  2  P.  &  D.  248. 
proof  independent  of  the  declaration  (y)  See  I   Phill.  Ev.  206,  loth  Ed.; 

itself;  and  it  is  for  the  judge  to  decide,  Gee  v.  Ward,  7  E.  &  B.  509. 
whether  this  relationship  is  established.  (z)  Per  Cur.,  Plant   v.  Taylor,  7    H. 

But     it     appears     that     evidence     of  &  N.  21 1,  23S. 
the  declaration  is  admissible,  if  there 

case,  we  are  second  cousins,"  is  not  admissible  evidence  for 
such  purpose.     State  v.  Greenwell,  4  Gill  &  J.  (Md.)  407. 

But  to  let  in  the  declarations  of  third  persons,  in  case  of 
pedigree,  it  must  be  shown  that  they  are  dead.  White  v. 
Strother,  11  Ala.  720;  Baintree  v.  Hingham,  1  Pick.  245. 

The  acts  and  declarations  of  a  party  are  competent  evi- 
dence against  him  when  affording  any  presumption  against 
him.  Phelan  v.  Bonham,  9  Ark.  389  ;  Harvey  v.  Anderson, 
12  Ga.  69;  Jones  v.  Morgan,  13  Ga.  515  ;  Pike  v.  Wiggin,  8 
N.  H.  356;  Tenney  v.  Evans,  14  N.  H.  343.  The  declarations 
of  one  partner  are  admissible  against  himself.  Crossgrove  v. 
Himmelrich,  54  Pa.  St.  203.  And  the  declarations  of  a  per- 
son are  evidence  against  him,  and  all  claiming  under  him  by  a 
subsequent  title.  He  can  not,  by  transferring  it  to  another, 
affect  the  rights  of  those  who  have  an  interest  in  his  confes- 
sions. Guy  v.  Hall,  3  Murph.  (N.  C.)  150;  Johnson  v.  Patter- 
son, 2  Hawks  (N.  C.)  183.  It  is  competent  to  show  that  a 
party  has  given  a  false  reason  for  his  conduct,  in  order  to  aid 
the  jury  in  inferring  the  true  reason.  Tompkins  v.  State,  17 
Ga.  356.  Statements  of  a  party  may  be  used  by  way  of  in 
ducement  or  illustration  of  legal  evidence.  Grines  v.  Talbot, 
1  A.  K.  Marsh.  (Ky.)  205.  Declarations  of  a  party  to  the  rec- 
ord in  interest  are  admissible,  and  in  the  absence  of  fraud,  if 
the  parties  have  a  j  jint  interest  in  the  matter  in  suit,  an  ad- 
mission made  by  one  is  in  general  evidence  against  all. 
Black  v.  Lamb,  r2  N.  J.  Eq.  (t  Beas.)  10S.  These  declarations 
are  to  be  considered  by  the  jury,  who  are  to  determine  what 
weight  shall  be  given  them.  Dufield  v.  Cross,  12  111.  597.  A 
statement  made  by  a  party,  in  a  deposition  given  by  him  in 
another  cause,  may  be  used  in  evidence  against  him,  as  an  ad- 
mission.   Brewer  v.  Hyndman,  18  N.  H.  9.    And  this  although 


848      SECONDARY    RULES    OF    EVIDENCE. 

eral  reputation  of  a  family  proved  by  a  surviving 
member  of  it ;  entries  contained  in  books,  such  as 
family  bibles,  if  produced  from  the  proper  custody, 
even  although  there  be  no  evidence  of  the  handwriting 
or  authorship  of  such  entries  ;  (a)  correspondence 
between  relatives ;  recitals  in  deeds;  descriptions  in 
wills  ;  inscriptions  on  tombstones,  rings,  monuments, 
or  coffin-plates ;  charts  of  pedigrees,  made  or  adopted 
by  deceased  members  of  the  family,  &c.,  have  severally 
been  held  receivable  in  evidence  for  this  purpose,  (b) 
And  it  is  impossible  to  dispense  with  this  kind  of 
evidence,  especially  in  proof  of  remote  and  collateral 
matters;  but  tribunals  should  be  on  their  guard,  when 
the  actual  point  in  issue  in  a  cause  depends  wholly  o*" 
chiefly  upon  it.  It  is  from  its  nature  very  much 
exposed  to  fraud  and  fabrication ;  and  even  assuming 
the  declaration,  inscription,  &c,  correctly  reported  by 
the  medium  of  evidence  used,  many  instances  have 
shown  how  erroneous  is  the  assumption  that  all  the 
members  of  a  family,  especially  in  the  inferior  walks 

(a)  Hubbard  v.  Lees,  L.  Rep.,  1  Ex.  of    A.,    that    the    plaintiff    was    A.'s 
255,  25S.  natural  son,  was  held  to  be  inadmissi- 

(b)  In  a  suit   in  which    the   plaintiff  ble.     Crispin  v.  Doglioni,  32  L.  J.,  P 
alleged  that  he  was  the  natural  son  of  &  M.  109. 

A.,  a  declaration  by  a  deceased  brother 

it  relates  to  the  contents  of  a  writing.  Loomis  v.  Wadhams, 
8  Gray  (Mass.)  557;  Smith  v.  Palmer,  6  Cush.  (Mass.)  513. 
Words  uttered  by  a  minister  in  his  sermon  are  merely  decla- 
rations in  his  own  favor,  and  are  not  communicated  to  the 
society  in  its  corporate  capacity,  and,  though  heard  by  the 
congregation  without  reply  or  comment,  have  no  tendency  to 
prove  that  they  assented  to  its  truth.  Johnson  v.  Trinity 
Church,  11  Allen  (Mass.)  123.  And  see  Doyle  v.  St.  James's 
Church,  7  Wend.  (N.  Y.)  17S;  Marvin  v.  Richmond,  3  Den. 
(N.  Y.)  58  ;  State  v.  Bryson,  1  Wins.  (N.  C  )  86  ;  Silvis  v.  Ely, 
3  Watts  &  S.  (Pa.)  420  ;  McGill  v.  Ash,  7  Pa.  St.  297  ;  State  v. 
Littlefield,  3  R.  I.  124;  Hardy  v.  De  Leon,  5  Tex.  211;  Wells 
v.  Fairbanks,  Id.  582;  Hill  v.  Powers,  16  Vt.  516;  Goodnow 
f.  Parsons,  36  Vt   46. 


DERIVATIVE     EVIDENCE.  849 

of  life,  are  even  tolerably  conversant  with  the  particu- 
lars of  its  pedigree.  (V) 

499.  4.  The  next  instance  in  which  this  rule  is 
relaxed,  seems  to  rest  even  more  exclusively  on  the 
principle  of  necessity ;  namely,  that  ancient  documents, 
purporting  to  constitute  part  of,  or  at  least  to  have 
been  executed  contemporaneously  with,  the  transac- 
tions to  which  they  relate,  are  receivable  as  evidence 
of  ancient  possession,  in  favor  of  those  claiming  under 
them,  and  even  against  others  who  are  neither  parties 
nor  privies  to  them,  (d)  "  The  proof  of  ancient  pos- 
session is  always  attended  with  difficulty.  Time  has 
removed  the  witnesses  who  could  prove  acts  of  owner- 
ship of  their  personal  knowledge,  and  resort  must 
necessarily  be  had  to  written  evidence."  (<?)  In  order 
to  guard  against  the  too  manifest  dangers  of  this  kind 
of  proof,  it  is  established  as  a  condition  precedent  to 
its  admissibility,  that  the  document  must  be  shown  to 
have  come  from  the  proper  custody,  i,  e.,  to  have  been 
found  in  a  place  in  which,  and  under  the  care  of  per- 
sons with  whom,  it  might  naturally  and  reasonably  be 
expected  to  be  found;  (_/")  although  it  is  no  objection 
that  some  other  more  proper  place,  &o.,  may  be  sug- 
gested, (g)  The  elder  civilians  applied,  with  tolerable 
justice,  the  term  "  piscatio  anguillarum  "  to  the  proof 
of  immemorial  possession,  (/z) 

500.  5.  Declarations  made  by  deceased  persons 
against  their  own  interest,  are  receivable  in  evidence  in 


(c)  See  the  judgment  of  the  Master  (/)  The  Bishop  of  Meath  v.  The 
of  the  Rolls  in  Crougch  v.  Hooper,  16  Marquess  of  Winchester,  3  Bingh.  N. 
Beav.  182  C.  200,  202. 

(d)  1  Phill.  Ev.  ch.  8,  sect.  5,  10th  (.g)  Id.;  Croughton  v.  Blake,  12  M. 
Ed.;  Tayl.  Ev.  Part  2,  ch.  10,  4th  Ed.  &  W.  205  ;    R.  v.  Mytton,  2  E.  &  E. 

(1?)    Per   Willes,   J.,    delivering    the  557. 

opinion  of  the  judges  in   Malcomson  {k)    Bonnier,    Traite  des     Preuves, 

v.  D'Dea,  10  Ho.  Lo.  Cas.  593,  614.  §  732. 
54 


850     SECONDARY    RULES     OF    EVIDENCE. 

proceedings  between  third  parties,  (z)  provided  such 
declarations  were  made  against  proprietory  (y)  or 
pecuniary  interest,  (Jt)  and  do  not  derrogate  from  the 
title  of  third  parties ;  e.  g.,  a  declaration  made  by  a 
deceased  tenant  is  not  admissible,  if  it  derogates  from 
the  title  of  the  reversioner.  (/)  ! 

The  admissibility  of  declarations  against  interest, 
made  by  parties  to  a  suit,  rests  on  a  different  principle. 
(;/z)  The  ground  of  this  exception  is,  the  improba- 
bility that  a  party  would  falsely  make  a  declaration  to 
fix  himself  with  liability  ;  but  cases  may  be  put  where 
his  doing  so  would  be  an  advantage  to  him.  E.  g.,  the 
accounts  of  the  receiver  or  steward  of  an  estate  have, 
through  neglect  or  worse,  got  into  a  state  of  derange- 

(*)  1   Phill.  Ev.  ch.  8,  sect.  7  ;    Tayl.  341. 

Ev.    Part    2,    ch.    II,    4th    Ed.      The  (k)  The  Sussex  Peerage  case,  11  CI. 

leading  case  on  this  subject  is  Higham  &  F.  85.     See  R.  v   The  Overseers  of 

v.  Ridgway,  10  East,  109  ;  set  out  and  Birmingham,  1  B.  &  S.  763. 

commented  on  in  2  Smith,  Lead.  Cas.  (/)  Papendick  v.  Bridgewater,  5  E.  & 

271,  5th  Ed.  B.  166. 

(J )  R.  v.   Exeter,   L.  Rep.,  4  Q.  B.  (m)  Infra,  ch.  7. 

1  Declarations  of  a  party  do  not  bind  those  claiming  under 
him  by  a  right  arising  prior  to  the  declarations,  and  are  not 
evidence  against  such  claimants.  Howard  v.  Snelling,  32  Ga. 
195.  To  render  the  entry  or  declaration  of  a  deceased  person 
evidence  between  third  persons,  it  must  have  been  made  with- 
out any  interest  to  mistake  facts,  and— unless  in  cases  of  ped- 
igree, custom,  boundary,  and  prescription — against  the  in- 
terest of  the  person  making  it ;  and  so  ancient  as  to  preclude 
a  suspicion  that  it  was  made  for  the  occasion.  Gilchrist  v. 
Martin,  1  Bailey  (S.  C.)  Eq.  492.  Declarations  of  one  in  pos- 
session of  land,  whether  as  tenant  or  proprietor,  are  evidence 
against  those  who  derive  their  title  through  him,  of  the  man- 
ner in  which  the  land  has  been  occupied  ;  Beecher  v.  Par- 
mele,  9  Vt.  352;  the  title  arising  since  such  admissions; 
Mullekin  v.  Greer,  5  Mo.  489  ;  Fratick  v.  Presley,  29  Ala. 
^5  7  ;  Meek  v.  Holton,  22  Ga.  491.  Declarations  against  the 
merest  of  the  party  making  them,  that  he  holds  as  tenant  or 
trustee  for  another,  are  admissible  against  him,  and  those  who 
succeed  to  his  rights  or  estate.    Brewer  v.  Brewer,  19  Ala.  481 


DERIVATIVE    EVIDENCE.  851 

ment,  which  it  is  desirable  to  conceal  from  his  employer  ; 
and  one  very  obvious  way  of  setting  the  balance 
straight,  is  falsely  charging  himself  with  having  re- 
ceived money  from  a  particular  person.  ' 

501.  6.  Allied  to  these  are  declarations  in  the 
regular  course  of  business,  office,  or  employment,  by 
deceased  persons,  who  had  a  personal  knowledge  of  the 
facts,  and  no  interest  in  stating  an  untruth.  (11)  But  the 
rule  as  to  the  admission  of  such  evidence,  is  confined 
strictly  to  the  particular  thing  which  it   was  the  duty 

(»)  1  Phill.  Ev.  ch.  8,  sect   8  ;    Tayl.  to  the  case  of  Price  v.  The   Earl   of 

Ev.  Part   2,  ch.  12,  4th    Ed.     For   the  Torrington  (reported   1    Salk.    285  ;    2 

authorities  on  this  subject,  see  the  note  Ld.  Raym.  873  ;  Holt,  300). 
in   1   Smith,   Lead.   Cas.  277,  5th   Ed., 

1  But  the  statements  of  third  parties,  appearing  to  have 
been  made  against  their  interest,  are  not  admissible,  unless 
the  parties  are  shown  to  be  dead  at  the  time  of  the  trial. 
Lowry  v.  Moss,  1  Strobh.  (S.  C.)  63.  And  see  as  to  such  de- 
clarations between  third  parties,  Allegheny  v.  Nelson,  25  Pa. 
St.  332;  Taylor  v.  'Gould,  57  Id.  152  ;  Coleman  v.  Frazier,  4 
Rich.  (S.  C.)  146:  Cruger  v.  Daniel.  1  McMull.  (S.  C.)  Eq.  157  ; 
White  v.  Chouteau,  1  E.  D.  Smith  (N.  Y.)  493  ;  Pease  v.  Jen- 
kins, 10  Ired.  (N.  C.)  L.  355.  The  declarations  of  a  person 
not  a  party,  who  is  living,  and  a  competent  witness  in  the 
cause,  though  against  his  interest  at  the  time  they  were  made, 
are  inadmissible.  Fitch  v.  Chapman,  10  Conn.  8  ;  Wiswall  v. 
Kenevals,  18  Ala.  65  ;  S.  P.  Barker  v.  Coleman,  35  Ala.  221  ; 
Bailey  v.  Wood,  24  Ga.  164;  Macon,  &c.  R.  R.  Co.  v.  Davis, 
27  Ga.  113;  Cobie  v.  McDaniel,  33  Mo.  363  ;  Redman  v.  Rob- 
erts, 1  Ired.  (N.  C.)  L.  479;  Gordon  v.  Bowers,  16  Pa.  St.  226. 
Reputation  or  hearsay  on  matters  concerning  private  titles, 
is  not  admissible,  unless  to  affect  with  notice  one  claiming  to 
be  an  innocent  purchaser,  if  shown  to  have  been  in  a  condi- 
tion to  have  heard  of  it,  as  a  circumstance  to  charge  him  with 
notice.  Blagg  v.  Hunter,  15  Ark.  246.  Admissions  of  a  per- 
son who  can  not  be  compelled  to  testify,  and  whose  declara- 
tions are  against  his  own  interest,  will  be  received  as  though 
he  were  dead.  Harriman  v.  Brown,  8  Leigh,  697.  Answers, 
against  his  interest,  made  by  a  bankrupt,  on  oath,  at  his  ex- 
amination, are  admissible.  Union  Canal  Co.  v.  Loyd,  4 
Watts  &  Serg.  369 


852      SECOXDARY    RULES    OF    EVIDENCE. 

of  the  person  to  do ;  and,  unlike  a  statement  against 
interest,  does  not  extend  to  collateral  matters,  however 
closely  connected  with  that  thing,  (o)  And  it  is  also  a 
rule  with  regard  to  this  class  of  declarations,  that  they 
must  have  been  made  contemporaneously  with  the 
acts  to  which  they  relate.  (/) 

502.  In  both  classes,  viz.,  declarations  against 
interest,  and  declarations    in    the   regular   course    of 

msiness,  &c,  the  evidence  commonly  appears  in  a 
vvritten  form  ;  and  it  has  even  been  made  a  question 
whether  this  is  not  essential  to  its  admissibility,  (y) 
But  the  inclination  of  the  authorities  is  rather  to  the 
effect  that  verbal  declarations,  answering,  of  course,  all 
other  requisite  conditions,  are  equally  receivable  ;  (r) 
and,  indeed,  it  seems  difficult  to  establish  a  distinction 
in  principle  between  the  cases. 

503.  7.  The  civil  law,  (s)  and  the  laws  of  some 
other  countries,  (7)  receive  the  books  of  tradesmen, 
made  or  purporting  to  be  made  by  them  in  the  regular 
course  of  business,  as  evidence  to  prove  a  debt  against 
a  customer  or  alleged  customer.    Sensible  of  the  weak- 

(0)   Per    Blackburn,    J.,    Smith    v.  own.     See  7  Jac.  1,  c.  12.    But  it  mav 

Blakey,  L.  Rep.,  2  Q.  B.  326,  332.  well  be  a   question   whether  the   doc- 

(/)  Deo  d.  Patteshall  v.  Turford,  3  trine  was  derived  from  the  Roman  law  ; 

B.  &  Ad.  898,  per  Parke,  J.;   Short  v.  if  so  it  is  wholly  at   variance  with    the 

Lee,  2    Jac.    &    W.   475,    per    Sir    T.  principles  laid  down  in  other  parts  of 

Plumer,  M.  R.  the  Corpus  Juris  Civilis.  E.  g.  "  Exem- 

(q)  Fursdon  v.  Clogg,  10  M.  &  W.  plo    perniciosum    est,  ut    ei   scripturse 

572.  credatur,  qua  unusquisque  sihi   adno- 

(r)  Sussex  Peerage  case,  11  CI.  &  F.  tatiune   propria    debitorem   constituit. 

113,  per  Ld.  Campbell;    Stapylton  v.  Unde    neque     fiscum,    neque     alium 

Clough,  2  E.  &  B.  933  ;  Edie  v.  Kings-  quemlibet     ex    suis     subnotationibus 

ford,  14  C  B.  759,  763.  debiti    probationem,    praebere     posse 

(j)  lleinec.  ad  Pand.  pars  4,  §   134;  oportet."     Cod.    lib.   4,    tit.    19,   1.    7 

I  Ev.  Poth.  §  719.     This   is  tiie  well-  "  Factum  cuique  suum,  non  adversaric 

known  doctrine  of  the  civilians,  which  nocere  debet."     Dig.  lib.  50,  tit.  17,  1. 

was  implanted  by  them  in  most  coun-  155.    See  also  Dig.  lib.  2,  tit.  14,  1.  27 

tries   of    Europe,   and    at    one    period  ^  4  ;  Cod.  lib.  7,  tit. 60,  11    1,  &  2. 

seems  to  have  obtained  a  footing  in  our  (/)  Tayl.  Ev.  J;g  641-3,  4th  Ed. 


DERIVATIVE    EVIDENCE.  853 

ness  and  danger  ol  this  sort  of  evidence,  the  civilians 
only  allowed  it  the  force  of  a  semi-proof;  and,  by  thus 
investing  it  with  an  artificial  value,  increased  the 
danger  of  receiving  it.  {21)  There  is  no  analogy 
between  entries  made  in  his  books  by  a  living  trades- 
man, and  entries  made  in  those  books  by  a  clerk  or 
servant  who  is  deceased,  and  who,  in  making  them, 
probably  charged  himself  to  his  master.  And  turn  or 
torture  this  question  as  we  will,  to  admit  the  former  is 
a  violation  of  the  rule  alike  of  law  and  common  sense, 
that  a  man  shall  not  be  allowed  to  manufacture 
evidence  for  himself,  (x)  It  is  true  that  tradesmen's 
books  are  usually  kept  with  tolerable,  and  in  some 
instances  with  great  accuracy  ;  but  may  not  the  reason 
of  this  be,  that  as  the  law  will  not  allow  them  to  be 
used  for  the  purpose  of  fraudulently  charging  others, 
they  are  now  kept  for  the  sole  and  bona  fide  purpose 
of  refreshing  the  memory  of  the  tradesman  as  to  what 
goods  he  has  supplied?  Besides,  it  is  to  be  observed 
that  almost  all  the  advantage  derivable  from  trades- 
men's books,  with  little  or  none  of  their  danger,  is 
obtained  under  the  law  as  it  now  stands.  For  not  only 
may  the  tradesman  appear  as  a  witness,  (^/)  and  use 
his  books  as  memoranda  to  refresh  his  memory  with 
respect  to  the  goods  supplied,  (■£■)  but  those  books  are 
always  available  as  "indicative"  evidence;  (a)  and 
especially  in  the  event  of  the  bankiuptcy  of  the 
tradesman,  they  are  often  found  of  immense  value  tc 
himself  or  those  who  represent  him. 

504.  8.   Books  of  a  deceased  incumbent — rector  or 
vicar— containing  receipts  and  payments  by  him  relative 

(u)    Heinec.   in  loc.   cit.      See    Ben-  (x)  Infra,  ch.  5  and  ch.  7. 

tham  >  comment  on  the  civil  law  prac-  ( y)  Bk.  2,  pt.  1,  ch.  2. 

tice   in   this   respect,   5    Jud.   Ev.  481,  (z)  Bk.  2,  pt.  3,  ch.  1. 

482;    and  supra,   Introd.   pt.   2,  J5    70,  (</)   For   "indicative    evidence"    S€fl 

"Ute  (/).  bk.  I,  pt.  I,  §  93. 


854      SECONDARY    RULES     OF    EVIDENCE. 

to  the  living,  have  frequently  been  held  receivable  in 
evidence  for  his  successors.  (6)  This  has  been  com- 
plained of  as  anomalous  ;  (7)  but  the  admissibility  of 
such  evidence  was  fully  recognized  in  the  compara- 
tively recent  case  of  Young  v.  The  Master  of  Clare 
Hall  ;  (d)  where,  however,  the  court  assigned  no 
reason  for  their  decision,  apparently  deeming  the 
question  settled  by  authority.  So  evidence  has  been 
admitted,  of  declarations  by  a  deceased  rector,  as  to  a 
custom  in  the  parish  relative  to  the  appointment  of 
churchwardens,  (c) 

505.  9.  The  last  exception  to  this  rule  it  that  of 
declarations  made  by  persons  under  the  conviction  of 
their  impending  death.  (f)  "  Nemo  moriturus  prsesu- 
mitur  mentiri"  (^-) — the  circumstances  under  which 
such  declarations  are  made,  may  fairly  be  assumed  to 
afford  a  guarantee  for  their  truth,  at  least  equal  to  that 
of  an  oath  taken  in  a  court  of  justice.  Hence  the 
dying  declarations  of  a  child  of  tender  years  will  be 
rejected,  unless  he  appears  to  have  had  that  degree  of 
religious  knowledge,  which  would  render  his  evidence 
receivable ;  (Ji)  as  likewise  will  those  of  an  adult, 
whose  character  shows  him  to  have  been  a  person  not 
likely  to  be  affected  with  a  religious  sense  of  his  ap- 
proaching dissolution.  (7)  l 

The  principal  objection,  however,  to  second-hand 
evidence  is,  not  that  it  is  not  guarded  by  an  oath,  but 

(b)  See  the  cases  collected,  I  Phill.       1S7  ;    1    Phill.   Ev.  ch.   3,  sect.  6,  10th 

Ev.  267-9,  Ioth  Ed.  Ed.;  Tayl.  Ev.  Part  2  ch.  13,  4th  Ed. 

if)  1  Ph.  Ev.  in  loc.  cit.  {g)  2  Ho.  St.  Tr.  18. 

{d)  17  Q.  B.  529.  (A)  Bk.  2  pt   1,  ch.  2. 

(e)  Bremner  v.   Hull,  L.  Rep.,  1    C.  (z)  1  Phil.  Ev.  242,  10th  Ed.;  Apple- 

P.  748.  ton,  Evid.  203    note  (v). 

(/)  R.  v.  Jenkins,  L.  Rep.,  1  C.  C. 

1  See  ante,  vol.  i..  note  1,  p.  113,  for  a  full  statement  ot 
American  authorities  as  to  the  credibility  to  be  attached  to 
dying  declarations. 


DERIVATIVE    EVIDENCE.  855 

that  the  party  against  whom  it  is  offered  is  deprived 
of  his  power  of  cross-examining,  and  the  jury  of  the 
opportunity  of  observing  the  demeanor  of  the  person 
whose  testimony  is  relied  on.  Besides,  if  the  solem- 
nity of  the  occasion  on  which  dying  declarations  are 
made,  constituted  their  sole  ground  of  admissibility,  it 
would  not  be  confined,  as  it  appears  to  be  by  law,  to 
a  solitary  class  of  cases,  i.  e.,  charges  of  homicide, 
where  the  language  of  the  deceased,  referred  to  the  in- 
jury which  he  expected  would  shortly  cause  his  death. 
(>£)  Two  other  reasons  plead  for  the  reception  of 
this  evidence  in  those  cases.  1.  The  difficulty  of 
procuring  better  proof  of  the  fact — the  injured  party 
being  no  more,  the  most  obvious  and  direct  source  of 
evidence  has  perished.  2.  Although  society  has  an 
immense  interest  in  punishing  crimes  of  such  magni- 
tude, the  witnesses  who  appear  to  prove  them,  rarely 
have  an  interest  in  putting  into  the  mouths  of  the 
dying  persons,  language  which  they  did  not  use.  In 
civil  matters  it  is  far  otherwise  ;  as  fatal  experience 
has  taught  men,  in  all  countries  where  nuncupative 
wills  have  been  allowed. 

(k)  R.  v.  Mead,  2  B.  &  C.  605,  60S;  received  in  civil  proceedings,  seem  to 
R.  v.  Hind.  Bell,  C.  C.  253.  Some  old  be  overruled  by  Stobart  v.  Dryden,  I 
cases  in  which  such  declarations  were      M.  &  W.  615,  626. 


856      SECONDARY    RULES    OF    EVIDENCE. 


CHAPTER  V. 

EVIDENCE     AFFORDED     BY      THE     WORDS     OR     ACTS     OF 

OTHER     PERSONS. 

PARAGRAPH 

Maxim  "  Res  inter  alios  acta  alteri  nocere  non  debet  "           .  .         506 
Other  forms  form  of  it                                                         ....     3o6 

Extent  of  it 506 

Distinction  between  "res  inter  alios  acta"  and  derivative  evidence  .      507 

The  maxim  does  not  exclude  proof  of  res  gestae             .                   .  .          508 

Instances  illustrative  of"  the  rule  "res  inter  alios  acta,  &c."                .  .     509 

Indicative  evidence         ......                   .  .          509 

Exceptions  to  the  rule       .         .         .         .         .         .         .         .         .  .510 

506.  "  Res  inter  alios  acta  alteri  nocere  non  debet." 
(#)  "  Res  inter  alios  acta?  alteri  nocere  non  debet."1 
(J?)  No  person  is  to  be  affected  by  the  words  or  acts 
of  others,  unless  he  is  connected  with  them  either  per- 
sonally, or  by  those  whom  he  represents  or  by  whom 
he  is  represented.  To  the  above  forms  of  the  maxim, 
some  books  add,  "  sed  quandoque  prodesse  potest,"  (c) 2 
or"sed  prodesse  possunt;"(V)  and  in  some  it  runs, 
"  nee  nocere  nee  prodesse  possunt.  (e)  3     These  addi- 

(a)  Co.  Litt.  152   b,  319  a  ;    2   Inst.  So  in  the  canon  law,  "  Res  inter  alios 

513  ;    6  Co.  51b;    Broom's   Max.  S57,  acta  aliis  praejudicium  regulariter  non 

3rd  Ed.     This  rule  was  well  known  at  adfert."    Lancel.  Inst.  Jur.  Can.  lib.  3. 

Rome.     "Inter  alios   res  gestas   aliis  tit.  15,  §  10. 
non    posse   praejudicium   facere,    saepe  {/>)  12  Co.  126. 

constitutum  est :  "    Cod.  lib.  7,  tit.  60,  (c)  Wingate's  Max.  327. 

1.    1.      "  Inter   alios    factam    transac-  (d)  6  Co.  1  b. 

tionem,  absenti  non  posse  facere  pras-  (e)  4  Inst.   279.     See  also   Bonnier 

judicium,  notissimi  juris  est :  "   Id.  1.  2.  Traite  des  Preuves,  §  692  ;    and  Cod. 

Sec  also   Dig.  lib.  2,  tit.  14,  1.  27,  §  4.  lib.  7,  tit.  56,  1.  2. 

1  Things  dope  between  strangers  ought  not  to  injure  those 
Dailies. 

2  They  may  benefit  them,  however. 

3  They  should  neither  injure  nor  benefit  them. 


EVIDENCE     BY     WORDS     OR    ACTS.         85/ 

tions  are,  however,  unneccessary ;  for  the  rule  is  only 
of  general,  not  universal  application,  there  being  sev- 
eral exceptions  both  ways.  Neither  does  the  expression 
"  inter  alios,"  mean  that  the  act  must  be  the  act  of  more 
than  one  person  ;  it  being  also  a  maxim  of  law  "  factum 
unius  alteri  nocere  non  debet."  (/")  And  the  Roman 
law,  from  which  both  maxims  were  probably  taken, 
expressly  says,  "  Exemplo  perniciosum  est,  ut  ei  scrip- 
turse  credatur,  qua  unusquisque  sibi  adnotatione  propria 
debitorum  constituit."  (g)  Nor  does  it  make  any 
difference  that  the  act  was  done  or  confirmed  by  oath, 
— "jusjurandum  inter  alios  factum  nee  nocere,  nee 
prodesse  debet;"  (//) — consequently  the  sworn  evi- 
dence of  a  witness  in  one  cause  or  proceeding,  can  not 
be  made  available  in  another  cause  or  proceeding 
between  other  parties.  One  important  branch  of  this 
rule,  "  res  inter  alios  judicata  alteri  nocere  non  debet," 
will  be  more  properly  considered  under  the  head  of 
res  judicata,  (z)  When  the  person  whose  words  or 
acts  are  offered  in  evidence,  is  also  the  opposite  party 
to  the  suit,  the  evidence  is  further  inadmissible  by  vir- 
tue of  another  important  principle — that  no  man  shall 
be  allowed  to  make  evidence  for  himself;  (/)  which 
also  is  in  accordance  with  the  Roman  law,  where  it  is 
laid  down,  "  Factum  cuique  suum,  non  adversario 
nocere  debet."  (/£) 

507.  Following  out  the  great  principle  which  exacts 
the  best  evidence,  it  is  obvious  that  things  done  inter 
alios  or  ab  alio,  are  even  more  objectionable  than  deri- 
vative or  second-hand  evidence.  The  two  are,  indeed, 
sometimes  confounded  ;  but  there  is  this  distinction  be- 


(/)  Co.  Litt.  152b.  2,  i.  3,  £  3,  and  1.  9,  §  7,  and  1.  10. 

(g)  Cod.  lib  4,  tit.  19,  1.  7  ;    1  Ev.  (i)  Infra,  ch.  0. 

Poth.  §  724.  ( /  )  See  infra,  ch.  7. 

(/»)  4  Inst.  279.     See  Diy.  lib.  12,  tit.  (i)  Dig.  lib.  50,  tit.  17,  1.  155. 


853     SECONDARY    RULES    OF    EVIDENCE. 

tvveen  them  ;  that  derivative  or  second-hand  evidence 
indicates  directly  a  source  of  legitimate  evidence,  while 
res  inter  alios  acta  either  indicates  no  such  source,  or  at 
most  does  so  only  indirectly.  Suppose,  for  instance, 
that  on  an  indictment  for  larceny,  A.  were  to  depose 
that  he  heard  B.  (a  person  not  present),  say  that  he 
saw  the  accused  take  and  carry  away  the  property  ; 
this  evidence  is  objectionable  as  being  offered  obste- 
tricante  manu,  but  it  indicates  a  better  source,  namely, 
B.  Suppose,  however,  that  C.  were  to  depose  that  he 
overheard  two  persons  unknown,  forming  a  plan  to 
commit  the  theft  in  question,  in  which  they  spoke  of 
the  accused  as  an  accomplice  who  would  assist  them 
in  its  execution;  this  evidence  is  but  res  inter  alios 
acta,  for  it  shows  no  better  source  of  legal  proof; 
although  as  indicative  evidence,  and  thus  putting 
officers  of  justice,  &c,  on  a  track,  it  certainly  might  not 
be  without  its  use. 

508.  There  is  likewise  this  point  of  resemblance 
between  second-hand  evidence  and  res  inter  alios 
acta,  that  the  latter,  like  the  former,  must  not  be  under- 
stood as  excluding  proof  of  res  gestae.  The  true 
meaning  of  the  rule  under  consideration  is  simply  this, 
that  a  party  is  not  to  be  affected  by  what  is  done 
behind  his  back.  Thus,  if  the  question  between  plain- 
tiff and  defandant  were,  whether  the  former  had  paid 
a  sum  of  money  to  D. ;  a  receipt  by  D.,  acknowledging 
payment  to  him  by  the  plaintiff  of  the  money  in 
question,  would  not,  per  se,  be  evidence  of  such  pay- 
ment as  against  the  defendant,  it  being  res  inter  alios 
acta;  and  yet  it  would  be  admissible,  as  part  of  the 
res  gestae,  for  the  purpose  of  proving  such  payment. 
(/)     So  when  the  matter  in  issue  consists  of  an  act, 

(/)  Carmarthen  &  Cardigan  Railway      Co.,  L.  Rep.,  8  C  P.  685. 
Co.  v.  Manchester  &  Milford  Railway 


EVIDENCE    BY     WORDS     OR    ACTS.        S59 

which  is  separable  from  the  person  of  the  accused, 
who  is  nevertheless  accountable  for  it,  proof  may  be 
given  of  that  act  before  he  is  connected  with  it  by 
evidence.  This  may  be  illustrated  as  follows.  Of- 
fenses, as  has  been  shown  in  a  former  place,  (ni)  are 
rightly  divisible  into  delicta  facti  permanentis  and  de- 
licta  facti  transeuntis,  i.  <?.,  into  offenses  which  leave 
traces  or  marks;  such  as  homicide,  arson,  burglary, 
&c. ;  and  offenses  which  do  not ;  such  as  conspiracy, 
criminal  language,  and  the  like.  With  respect  to 
the  former,  it  is  every  day's  practice  to  give  proof  of 
a  corpus  delicti— that  a  murder,  an  arson,  a  burglary, 
&c.  was  committed — before  any  evidence  is  adduced 
affecting  the  accused,  although  without  such  evidence 
the  antedent  proof  of  course  goes  for  nothing.  And 
the  same  holds  when  the  offense  is  facti  transeuntis. 
Thus,  on  an  indictment  for  libel,  proof  may  first  be 
given  of  the  libel,  and  the  defendant  may  then  be  shown 
to  have  been  the  publisher  of  it.  Another  illustration  is 
afforded  by  prosecutions  for  conspiracy,  where  it  is  a 
settled  rule,  that  general  evidence  may  be  given  to  prove 
the  existence  of  a  conspiracy,  before  the  accused  is 
shown  to  be  connected  with  it ;  (n)  for  here  the  corpus 
delicti  is  the  conspiracy,  and  the  participation  of  the 
accused  is  an  independent  matter  which  may  or  may 
not  exist.  The  rule  that  the  acts  and  declarations  of 
conspirators  are  evidence  against  their  fellows,  rests 
partly  on  this  principle,  and  partly  on  the  law  of  prin- 
cipal and  agent.  The  following  summary  of  the  prac- 
tice, taken  from  an  approved  work,  (0)  is  fully  supported 
by  authoriry.  "Where  several  persons  are  proved  to 
have  combined  together  for  the  same  illegal  purpose, 

(m\  ^upra,  ch.  2,  sect.  3,  sub-sect.  2.  1  Fost.  &  F.  213. 

Kn)  So.e  the  authorities  collected  in  (0)  3  Russ.  on  Cr.  161,  4th  Ed.     See 

Rose.  Crim.  Ev.  389,  5th  Ed.;  also  R.  also  Phill.  &  Am.  Ev.  210,  434  ;  Tayl, 

v.  Blake,  6  Q.  B.  126  ;    R    v.  E^daile,  Ev.  527-532,  4th  Ed. 


S6o     SECONDARY    RULES    OF    EVIDENCE. 

any  act  done  by  one  of  the  party,  in  pursuance  of  the 
original  concerted  plan,  and  with  reference  to  the  com- 
mon object,  is  in  contemplation  of  law  the  act  of  the 
whole   party ;  and,  therefore,   the    proof  of  such    act 
would  be  evidence  against  any  of  the  others  who  were 
engaged  in   the    same    conspiracy;  and,    further,  any 
declarations  made  by  one  of  the  party  at  the  time  of 
doing  such  illegal  act,  seem  not  only  to  be  evidence 
against  himself,  as  tending  to  determine  the  quality  of 
the  act,  but  to  be  evidence  also  against  the  rest  of  the 
party,  who  are  as  much  reponsible  as  if  they  had  them- 
selves done  the  act.     But  what  one  of  the  party  may 
have  been  heard  to  say  at  some   other  time,  as  to  the 
share  which  some  of  the  others  had  in  the  execution  of 
the  common  design,  or   as  to  the  object  of  the  con- 
spiracy, can  not,  it  is  conceived,  be    admitted  as  evi- 
dence to  affect  them  on  their  trial  for  the  same  offense. 
And,  in  general,  proof  of  concert  and  connection  must 
be  given,  before  evidence  is  admissible  of  the  acts  or 
declarations  of  any  person  not  in  the  presence  of  the 
prisoner.     It  is  for  the  court  to   judge  whether  such 
connection  has  been  sufficiently  established  ;  but  when 
that  has    been  done,  the  doctrine    applies,  that  each 
party  is  an  agent  for  the  other,  and  that  an  act  done 
by  one  in  furtherance  of  the  unlawful  design,  is  in  law 
the  act  of  all,  and  that  a   declaration  made  by  one  of 
the  parties,  as  the  time  of  doing  such  an  act,  is  evi- 
dence against  the  others."     And  this  is  in  accordance 
with  the  law  in  other  cases  ;  for  if  several  persons  go 
out  with  the  common  design  of  committing  an  unlaw- 
ful act,  anything    done    by  one    of  them  in    prosecu- 
tion   of  that    design,  though  not    in    presence    of  his 
fellows,  is  in  law  the  act  of  them  all.  (/) 

QS )  I  Hale.  P.  C.  462  el  seq.  ;    Fost.       son,    1    Leach,    C.    L.    6  ;    4    Blackst 
^-  L   249-350,  353-354:    R.  v.  Hod-;-      Coram,  34. 


EVIDENCE    BY     WORDS     OR    ACTS.        86 1 

509.  The  rule  "  res  inter  alios  acta  alteri  nocere 
non  debet,"  is  so  elementary  in  its  nature  that  a  few 
instances  will  suffice  for  its  illustration.  (^)  Sir 
Edward  Coke  gives  the  following:  "  If  a  man  make 
a  lease  for  life,  and  then  grant  the  reversion  for  life, 
and  the  lessee  attorn,  and  after  the  lessor  disseise  the 
lessee  for  life,  and  make  a  feoffment  in  fee,  and  the  lessee 
re-enter,  this  shall  leave  a  reversion  in  the  grantee 
for  life,  and  another  reversion  in  the  feoffee,  and 
yet  this  is  no  attornment  in  law  of  the  grantee  for  life, 
because  he  doth  no  act,  nor  assent  to  any  which  might 
amount  to  attornment  in  law.  Et  res  inter  alios  acta 
&c."  (r)  Where  several  persons  are  accused  or  sus- 
pected of  a  criminal  offense,  (s)  or  sued  in  a  civil 
court,  (f)  a  confession  or  admission  by  one  in  the 
absence  of  his  fellows  is  no  evidence  against  them. 
So  where,  on  an  appeal  of  robbery  against  A,  the  jury 
acquitted  the  defendant,  and  found  that  B  and  C 
abetted  the  appellant  to  bring  the  false  appeal ;  as  B 
and  C  were  strangers  to  the  original,  they  were  not 
concluded  by  this  finding  ;  "  but,"  adds  the  report, 
"they  shall  be  distrained  ad  respondendum,"  (?/) — a 
good  instance  of  the  value  of  res  inter  alios  acta,  as  in- 
dicative, however  dangerous  it  would  be  as  legal, 
evidence. l 

(q)  The  reader  desirous  of  more  will  (t)  Gcdb.   326,  pi.  418;    Hemmings 

find  a  large  number  collected  in  Win-  v.  Robinson,  1  Barnes'  Notes,  317. 
gate's  Maxims,  p.  327.  (u)  Old  record  of  Mich.  42  Edw.  III. 

(r)  Co.  Litt.  319a.  set  out  12  Co.  125,  126. 

{s)  Kely.  IS  ;  9  Ho.  St.  Tr.  23. 

1  So  admissions  made  with  a  view  to  a  compromise  (Wood 
v.  Wood,  3  Ala.  756;   Wilson   v.   Hines,  1    Minor  (Ala.)    255; 
Rideout  v.  Newton,  17    N.  II.  71;  Perkins  v.  Concord  R.  R 
44  N.  H.  223;  Williams  v.  Thorp,  8  Cow.   (N.  Y.)   201;  Stat 
v.  Dutton,  11  Wis.  371)  are  res  inter  alios   acta,   and   evidenc 
of  their  nature   may  be  submitted.      In   case  of  a  fraudulent 
combination   between   the  assignor  and  assignee,  the  declara 


862      SECONDARY    RULES    OF    EVIDENCE. 

5 10.  We  have  said  that  there  are  exceptions  to  this 
rule.  Thus,  although  in  general  strangers  are  not 
bound  by,  andean  not  take  advantage  of  estoppels,  yet 
it  is  otherwise  when  the  estoppel  runs  to  the  disability 
or  legitimation  of  the  person,  (x)  So  a  judgment  in 
rem,  in  the  Exchequer,  is  conclusive  against  all  the 
world  :  (y)  as  also  was  a  fine  after  the  period  of  non- 
claim  had  elapsed,  (z)  The  admissibility  in  evidence 
of  many  documents  of  a  public  and  quasi  public  nature, 
is  at  variance  with  this  principle,  which  is  then  brought 
in  collision  with  the  maxim  "  omnia  praesumuntur  rite 
esse  acta:"  and  the  number  of  them  has  been  much 
increased  by  statute,  especially  in  late  years,  (a)  The 
following  decided  exception  is  also  given  by  Little- 
ton :  (6) — "  if  there  be  lord,  mesne,  and  tenant,  and  the 
tenant  holdeth  of  the  mesne  by  the  service  of  five 
shillings,  and  the  mesne  holdeth  over  by  the  service  of 

(x)  Infra,  ch.  7,  sect.  2.  (a)  See  bk.  1,  pt.  2. 

(y)  Infra,  ch.  9.  (6)  Sect.  231. 

(z)  2  Blackst.  Comm.  354. 

tions  of  the  assignor,  after  the  assignment,  are  binding  on  the 
assignee.  Cuyler  v.  McCartney,  33  Barb.  (N.  Y.)  165  ;  O'Neil 
v.  Glover,  5  Gray  (Mass.)  144.  As  a  general  rule,  the  admis- 
sions or  declarations  of  a  person  not  a  party  to  the  record,  are 
not  admissible  in  evidence  in  the  absence  of  better  testimony. 
Ibbitson  v.  Brown,  5  Iowa,  532  ;  Chastain  v.  Robinson,  30  Ga. 
55  ;  Berry  v.  Waring,  2  Har.  &  J.  (Md.)  103  ;  Lyman  v.  Gip- 
son,  18  Pick.  (Mass.)  422;  Bain  v.  Clark,  39  Mo.  252;  For- 
saith  v.  Stickney,  16  N.  H.  575.  Jones  v.  Doe,  2  111.  (1  Scam.) 
276;  McCormick  v.  Robb,  24  Pa.  St.  44;  Kottwitz  v.  Bagby, 
16  Tex.  656  ;  Wesson  v.  Washburn  Iron  Co.,  13  Allen,  95. 
One  man  can  not  be  bound  by  the  admissions  of  another,  un- 
less such  a  relation  is  previously,  and  by  other  evidence, 
proved  to  exist  between  them  as  will  enable  one  to  involve 
the  other  in  liabilities.  Kilburn  v.  Ritchie,  2  Cal.  145  ;  Atwell 
v.  Miller,  11  Md.  348;  Commonwealth  v.  Oberle,  3  Serg.  &  R. 
(Pa.)  9  ;  Hill  v.  Myers,  43  Pa.  St.  170  ;  Faulkner  v.  Whitaker 
15  N.  J.  L.  (3  Green)  438. 


EVIDENCE    BY     WORDS     OR    ACTS.        863 

twelve  pence,  if  the  lord  paramont  purchase  the  ten 
ancy  in  fee,  then  the  service  of  the  mesnalty  is  extinct 
because  that  when  the  lord  paramont  hath  the  tenancy 
he  holdeth  of  his  lord  next  paramont  to  him,  and  if  he 
should  hold  this  of  him  which  was  mesne,  then  he 
shall  hold  the  same  tenancy  immediately  of  divers 
lords  by  divers  services,  which  should  be  inconvenient, 
and  the  law  will  sooner  suffer  a  mischief  than  an  in- 
convenience, and  therefore  the  seignory  of  the  mesnalty 
is  extinct."  On  this  Sir  Edward  Coke  observes,  (V) — 
"  It  is  holden  for  an  inconvenience,  that  any  of  the  max- 
ims of  the  law  should  be  broken,  though  a  private  man 
suffer  loss  ;  for  that  by  infringing  of  a  maxim,  not  only 
a  general  prejudice  to  many,  but  in  the  end  a  public 
incertainty  and  confusion  to  all  would  follow.  And 
the  rule  of  law  is  regularly  true,  res  inter  alios  acta  alteri 
nocere  non  debet,  et  factum  unius  alteri  nocere  non 
debet ; '  which  are  true  with  this  exception,  unless  an 
inconvenience  should  follow."  And  another  old  book 
lays  down  as  maxims, "  Privatum  incommodum  publico 
bono  pensatur."  (d)  2 — "  Privatum  commodum  publico 
cedit."  (6')  3 

(c)  Co.  Litt.  152  b.  (e)  Jenk.  Cent.  5,  Cas.  80. 

(d)  Jenk.  Cent.  2,  Cas.  65. 

1  See  ante,  p.  856,  note  1. 

a  Private  loss  is  over-balanced  by  public  good. 

"  Let  private  convenience  yield  to  public  good. 


864      SECONDARY    RULES     OF    EVIDENCE. 


CHAPTER  VI. 

OPINION    EVIDENCE. 

PARAGRAPH 

Ger.sra.  rule — opinion  evidence  not  receivable en 

Meaning  of  the  rule         .         .         .         .         .         .         .         .         .         .  512 

Exceptions  to  the  rule                              , 513 

1.  Evidence     of     "experts"    on     questions     of    science,   skill, 

trade,  &c ...       513-14 

Experts  in  French  law      ...  ....         515 

Present    state   of    our    law,    with     reference    to    procuring 

evidence  of 515 

Scientific     evidence     received    with    too     little     discrimina- 
tion         516 

2.  Opinions   founded  on  complex  facts  which  can  not  easily  be 

brought  before  the  tribunal         .         .         .         .         .         .  517 

511.  The  use  of  witnesses  being  to  inform  the  tri- 
bunal respecting  facts,  their  opinions  are  not  in  general 
receivable  as  evidence,  (a)  This  rule  is  necessary,  to 
prevent  the  other  rules  of  evidence  being  practically 
nullified.  Vain  would  it  be  for  the  law  to  constitute 
the  jury  the  triers  of  disputed  facts,  to  reject  derivative 
evidence  when  original  proof  is  withheld,  and  to  declare 
that  a  party  is  not  to  be  prejudiced  by  the  words  or  acts 
of  others  with  whom  he  is  unconnected,  if  tribunals 
might  be  swayed  by  opinions  relative  to  those  facts,  ex- 
pressed by  persons  who  come  before  them  in  the  char- 
acter of  witnesses.  If  the  opinions  thus  offered  are 
founded  on  no  evidence,  or  on  illegal  evidence,  they 
ought  not  to  be  listened  to  ;  if  founded  on  legal  evi- 
dence, that  evidence  ought  to  be  laid  before  the  jury, 

{a)  Peake  Evid.  195,  5th  Ed,;  Ph.  &      Ed.;    3   Burr.  1918  ;    5   B.  &  Ad.  846, 
Am.  Evid.  899;    I    Phill.   Evid.   520,      847;  and  the  authorities  in  the  follow 
toth  Ed.;    1  Greenl.  Evid.  §  440,  7th      ing  notes. 


OPINION    EVIDENCE.  865 

whom  the  law  presumes  to  be  at  least  as  capable  as  the 
witnesses,  of  drawing  from  them  any  inferences  that 
justice  may  require.  l  "  Testes  rationem  sciential  red- 
dere  teneantur."  (Ji)  "  Lestestm  doivent  rien  tesm 
forsceoque  ils  soient  de  certein,s.  ceo  que  ils  veront  ou 
oyront."  (V)  "  Omne  sacramentum  debet  esse  certse 
sciential"  (d)  "  It  is  no  satisfaction  for  a  witness  to 
say  that  he  thinks,  or  persuadeth  himself,  and  this  for 
two  reasons.  First.  Because  the  judge  is  to  give  an 
absolute  sentence,  and  for  this  ought  to  have  a  more 
sure  ground  than  thinking.  Secondly.  The  witness 
can  not  be  sued  for  perjury."  (<?) 

512.  This  rule  must  not,  however,  be  misunder- 
stood ; — nothing  being  further  from  the  design  of  the 
law,  than  to  exclude  from  the  cognizance  of  the  jury, 
anything  which  could  legitimately  assist  them  in  form- 
ing a  judgment  on  the  facts  in  dispute.  The  meaning 
of  the  rule  is  simply  that  questions  shall  not  be  put 
to  a  witness  which,  by  substituting  his  judgment  for 
theirs,  virtually  put  him  in  the  place  of  the  jury.  A  good 
illustration  of  its  real  nature  is  afforded  by  the  case  of 
Daines  and  another  v.  Hartley.  (_/")  That  wasanaction 
for  slandering  the  plaintiffs  in  their  trade.  At  the  trial  a 
witness  deposed  to  the  following  words,  as  having  been 
spoken  by  the  defendant  relative  to  some  bills  given 
by  the  plaintiffs  to  a  firm  of  which  the  witness  was 
member :  "  You  must  look  out  sharp  that  those  bills 
are  met  by  them."  The  counsel  for  the  plaintiffs  then 
proposed  to  ask,  "  What  did  you  understand  by  that  ?  " 
which  question  was  objected  to,  and  disallowed  by  the 
judge.     A  rule  for  a  new  trial  was  afterwards  obtained, 

{b)  Heinec.  ad  Pand.  pars  4,  §  144.  (e)  Dyer,  53b,  pi.    II,  in  marg.   Ed 

(c)  Per  Thorp,  C.  J.,  23  Ass.  pi.  11.      1688. 

(d)  4  Inst.  27g,  (/)  3  Exch.  200. 

1  Every  oath  ought  to  be  grounded  on  certain  knowledge 

55 


866     SECONDARY    RULES     OF    EVIDENCE. 

on  the  ground  that  the  question  was  improperly  re- 
jected :  which,  after  argument,  was  discharged :  and 
the  following  judgment  was  delivered  by  Pollock,  C. 
B.,  in  the  name  of  the  court :  "  There  can  be  no  doubt 
that  words  may  be  explained  by  bystanders  to  import 
something  very  different  from  their  obvious  meaning. 
The  bystanders  may  perceive  that  what  is  uttered  in 
an  ironical  sense,  and  therefore,  that  it  may  mean 
directly  the  reverse  of  what  it  professes  to  mean. 
Something,  may  have  previously  passed,  which  gives  a 
peculiar  character  and  meaning  to  some  expression ; 
and  some  word  which  ordinarily  or  popularly  is  used 
in  one  sense,  may,  from  something  that  has  gone 
before,  be  restricted  and  confined  to  a  particular 
sense,  or  may  mean  something  different  from  that 
which  it  ordinarily  and  usually  does  mean.  But  the 
proper  course  for  a  counsel,  who  proposes  to  get 
rid  of  the  plain  and  obvious  meaning  of  words  im- 
puted to  a  defendant,  as  spoken  of  the  plaintiff,  is  to 
ask  the  witness,  not  '  What  did  you  understand  by 
those  words  ?'  but '  Was  there  anything  to  prevent  those 
words  from  conveying  the  meaning  which  ordinarily 
they  would  convey  ? '  because,  if  there  was,  evidence  of 
that  may  be  given  ;  and  then  the  question  may  be  put. 
When  you  have  laid  the  foundation  for  it,  the  question 
then  may  be  put, '  What  did  you  understand  by  them  ?' 
when  it  appears  that  something  occurred,  by  which  the 
witness  understood  the  words  in  a  sense  different  from 
their  ordinary  meaning.  I  believe  we  may  say,  that 
generally  no  question  ought  to  be  put  in  such  a  form  as 
possibly  to  lead  to  an  illegal  answer.  Now,  taken  by 
itself,  and  without  more,  the  understanding  of  a  person 
vho  hears  an  expression  is  not  the  legal  mode  by  which 
it  is  to  be  explained.  If  words  are  uttered  or  printed 
the  ordinary  sense  of  those  words  is  to  be  taken  to  be 


OPINION    EVIDENCE.  867 

the  meaning  of  the  speaker;  but  no  doubt  a  foundation 
may  be  laid,  by  showing  something  else  which  has  oc- 
curred :  some  other  matter  may  be  introduced,  and  then 
when  that  has  been  done,  the  witness  may  be  asked, 
with  reference  to  that  other  matter,  what  was  the  sense 
in  which  he  understood  the  words.  But  the  mere 
question,  '  What  did  you  understand  with  reference  to 
such  an  expression  ? '  we  think  is  not  the  correct  mode 
of  putting  the  question." 

513.  The  rule  is  not  without  its  exceptions.  Be- 
ing based  on  the  presumption,  that  the  tribunal  is  as 
capable  of  forming  a  judgment  on  the  facts  as  the 
witness,  when  circumstances  rebut  this  presumption 
the  rule  naturally  gives  way — "  Cessante  ratione  legis, 
cessat  ipsa  lex."  (g)  1.  On  questions  of  science, 
skill,  trade,  and  the  like,  persons  conversant  with  the 
subject-matter — called  by  foreign  jurists  "  experts,"  an 
expression  now  naturalized  among  us, — are  permitted 
to  give  their  opinions  in  evidenee. x     This  rests  on  the 

(g)  Co.  Litt.  79b. 

1  This  rests  upon  the  necessities  of  the  case.  Slater  v. 
Wilcox,  57  Barb.  604.  Rochester,  &c.  R.  R.  Co.  v.  Budlong, 
10  How.  Pr.  289;  Reed  v.  Hobbs,  2  Scam.  297;  McKee  v. 
Nelson,  4  Cowen,  355.  To  render  one  an  expert,  however,  the 
pursuit  in  which  he  is  engaged  must  be  one  of  science,  skill, 
trade,  or  the  like.  See  Grigsley  v.  Clear  Lake,  &c.  Co.,  40  Cal. 
376.  A  brakeman  on  a  railroad  is  not  an  expert.  Hamilton 
v.  Des  Moines,  &c.  R.  R.  Co.,  36  Iowa,  81.  Muldowney  v. 
Illinois,  &c.  R.  R.  Co.,  Id.  462.  Nor  is  one  justice  of  the 
peace  an  expert  as  to  the  question  of  fees  due  another  justice 
of  the  peace.  Evans  v.  Story  County,  35  Iowa,  126.  While 
undoubtedly  it  must  appear  that  a  witness  called  as  an  expert 
has  enjoyed  some  means  of  special  knowledge  or  experience 
upon  the  subject  in  question,  no  rule  can  be  laid  down  as  to 
its  extent.  Ardesco  Oil  Co.  v.  Gilson,  63  Pa.  St.  146. 
Though  a  physician  may  testify  as  an  expert  as  to  his 
opinion  formed  by  reading  and  study  alone.  State  v.  Wood, 
53  N.  H.  484 


868     SECONDARY     RULES     OF    EVIDENCE. 

maxim  "  cuilibet  in  sua  arte  perito  est  credendum  : " 
(//) '  and  the  principle  has  been  thus  stated,  (z)  viz., 
that  "  the  opinion  of  witnesses  possessing  peculiar  skill 
is  admissible,  whenever  the  subject-matter  of  inquiry  is 
such,  that  inexperienced  persons  are  unlikely  to  prove 
capable  of  forming  a  correct  judgment  upon  it  with- 
out such  assistance ;  in  other  words,  when  it  so  far 
partakes  of  the  nature  of  a  science  as  to  require  a 
course  of  previous 'habit  or  study,  in  order  to  the 
attainment  of  a  knowledge  of  it."  2  A  large  number 
of  instances  of  the  application  of  this  principle,  are  to 
be  found  in  the  books.  The  opinions  of  medical  men 
are  constantly  admitted  as  to  the  cause  of  disease  or  of 
death  ;  or  the  consequence  of  wounds  ;  or  with  respect 
to  the  sane  or  insane  state  of  a  person's  mind,  as  col- 
lected from  a  number  of  circumstances ;  and  on  other 
subjects  of  professional  skill,  {k)  3     But  where  scien- 

(//)  Co.  Litt.  125a;    4  Co.  29a;  Cal-  means  a   modern  invention.     In   the 

vin's  case,  7  Co.  19a.  28  Ass.  pi.  5.  on  an  appeal  of  maihem, 

(i)   I    Smith's   Lead.    Cas.   491,    5th  the   defendant   prayed   that   the   court 

Ed.;  and  see,  per  Lord  Ellenborough,  would  see  the  wound,  to   see  if  there 

Beckwith  v.  Sydebotham,  1  Camp.  116,  had  been  a  maiming  or  not.     And  the 

117,  and  note  (a),  to  Fenwick  v.  Bell,  court  did  not  know  how  to  adjudge  be- 

1  C  &  K.  313.  cause  the  wound  was  new,  and  then 

(k)   1    Greenl.   Ev.   §  440,   7th    Ed.  the  defendant  took  issue,  and  prayed 

The    practice    of     resorting    to    this  the  court    that   the  maihem  might  be 

species  of  scientific  evidence,  is  by  no  examined  ;    on  which  a  writ  was  sent 

1  Every  man  is  considered  skillful  in  his  own  profession. 
See  post,  note  3. 

2  Experts,  it  has  been  said,  are  persons  instructed  by  expe- 
rience. So  experts  are  compentent  to  testify  as  to  whether  it 
is  possible  to  examine  all, the  layers  in  a  case  of  old  tobacco, 
without  injuring  the  tobacco.  Atwater  v.  Clancy,  107  Mass. 
369.  And  see  post,  cases  cited  in  note  1,  page  876.  The  admis- 
sion or  rejection  of  the  evidence  of  a  witness  called  as  an 
expert  is  in  the  sound  discretion  of  the  court,  and  except  in  a 
clear  and  very  strong  case,  will  not  be  reversed  on  appeal. 
Sorg  v.  First  German,  &c.  Congregation,  63  Pa.  St.  156. 

8  It  has  been  held  that  it  is  not  necessary  that  the  witness 


OPTNION    EVIDENCE.  869 

tific  men  are  called  as  witnesses,  they  can  not  give 
their  opinions  as  to  the  general  merits  of  the  cause,  but 
only  their  opinions  upon  the  facts  proved.  (/)  '     Seal 

to  the  sheriff,  to  cause  to  come  "  Medi-  regis  injungerentur."    See  also  Plowd. 

cos,  chirurgicos  de  melioribus  London.  125. 

ad   informandum  dominum   regem   et  (/)    I    Geenl.    Ev.    §    440,   7th    Ed.; 

curiam  de  his,  quae  eis  ex  parte  domini  M'Naghten's  case,  10  CI.  &  F.  200. 

should  be  engaged  in  the  practice  of  his  profession  or  science, 
and  that  it  is  sufficient  if  he  has  studied  it ;  the  fact  that 
a  witness  who  has  studied  medicine  is  not  in  practice,  goes  to 
his  credit  and  not  to  his  competency.  Tullis  v.  Kidd,  12  Ala. 
648.  The  rule  as  to  when  and  upon  what  subjects  experts 
may  testify,  is  matter  of  law ;  but  whether  a  witness  has  such 
qualifications  as  the  rule  may  require,  is  a  question  of  fact. 
Jones  v.  Tucker,  41  N.  H.  546. 

1  And  so  a  professional  witness  may  give  his  opinion  as  to 
the  sanity  of  a  party,  drawn  from  the  result  of  his  own  obser- 
vations, but  not  his  opinion  as  based  upon  facts  stated  by 
other  witnesses.  Dunham's  appeal,  27  Conn.  193.  And  see 
Clary  v.  Clary,  2  Ired.  R.  78.  Nor  can  an  expert  give  his 
opinion  upon  statements  made  to  him  by  parties  out  of  court, 
who  were  not  under  oath.  Heald  v.  Thing,  45  Me.  392. 
Except  that  often  standard  medical  books  are  admissible,  as 
evidence  of  the  author's  opinion  upon  a  question  of  medical 
skill  and  practice  involved  in  the  trial  of  a  cause.  Bowman 
v.  Woods,  1  Green  (t  Iowa)  441.  See,  however,  Luning  v. 
State,  1  Chand.  (Wis.)  178,  which  holds  that  statements  in  scien- 
tific books,  not  verified  by  the  witness's  actual  experience,  are 
not  evidence  of  anything  more  than  the  author's  opinion,  and 
therefore  not  legal  evidence.  This  case  also  holds  that  it  is 
wholly  within  the  discretion  of  the  court  to  hear  or  reject  the 
reading  of  scientific  books  on  the  hearing  of  a  cause. 

Such  experts  are  not  allowed  to  give  their  opinions  upon 
controverted  facts,  but  counsel  may  put  to  them  a  state  of  facts 
and  ask  their  opinions  thereon;  United  States  v.  McGlue,  1 
Curtis  Ct.  Ct.  1;  even  if  the  case  be  hypothetical;  Lun- 
ing v.  State,  1  Chand.  (Wis.)  178;  Lake  v.  People,  1  Parker's 
Cr.  R.  495;  but  under  proper  instructions  to  the  jury  as  to 
its  application  to  the  issue.  Crawford  v.  Wolf,  29  Iowa,  567. 
A  medical  expert  who  has  heard  facts  stated  in  evidence, 
about  which  there  is  no  dispute,  may  give  his  opinion  concern- 
ing them;  but  if  the  facts  are  disputed,  the  case  must  be  put 
to  him  hypothetically.  State  v.  Klinger,  46  Mo.  224;  Car- 
penter v.  Blake,  2  Lans.  206. 


870      SECONDARY    RULES     OF    EVIDENCE. 

engravers  may  be  called  to  give  their  opinion  upon  an 
impression,  whether  it  was  made  from  an  original  sea. 
or  from  an  impression  ;  the  opinion  of  an  artist  is  evi- 

In  the  trial  of  Mrs.  Wharton,  on  a  charge  of  poisoning 
General  W.  S.  Ketchum  (Pamphlet,  p.  108),  Mr.  Hagner,  of 
prisoner's  counsel,  read  to  the  witness  the  following  hypo- 
thetical case  and  interrogatory  : 

"  A  gentleman  about  fifty-eight  years  of  age,  residing  on 
the  Heights  of  Georgetown,  D.  C,  on  the  morning  of  the 
24th  of  June,  187 1,  at  7  o'clock,  a.  m.,  was  in  Washington 
city,  more  than  a  mile-and-a-half  from  his  home,  having 
already  breakfasted.  After  other  occupations,  he  called  about 
12,  m.,  at  an  office  more  than  a  mile  further  off,  and  there  he 
was  engaged  about  important  business,  in  completing  which 
he  walked  about  a  mile-and-a-half  further.  The  day  was  ex- 
cessively warm,  and  he  seemed  to  be  much  heated.  He  took 
no  dinner.  He  came  over  to  Baltimore  in  an  afternoon  train, 
and  after  reaching  there,  drove  and  walked  about  a  mile  from 
the  depot  to  his  lodgings,  and  immediately  walked  out  again, 
and  was  absent  some  time.  Between  8  and  9  o'clock,  p.  m., 
he  partook  of  a  hearty  meal  of  meat,  biscuits,  coffee,  &c,  of 
which  raspberries  were  the  concluding  course,  and  after 
smoking  and  talking  with  his  friends  until  11  o'clock,  p.  m., 
he  retires  to  bed.  Some  hours  afterwards  he  is  taken  sick, 
and  leaves  his  room,  and  walks  downstairs  into  the  yard. 

"  Sunday  morning,  though  still  complaining  of  not  feeling 
well,  he  goes  out,  visits  a  friend,  and  remains  for  some  time. 
He  then  returns,  indisposed.  Between  8  and  9  o'clock,  p.  m., 
he  drinks  a  glass  of  lemonade,  with  brandy  in  it,  and,  after  an 
hour  or  two,  retires  to  bed.  During  the  night,  he  is  attacked 
with  symptoms  of  cholera  morbus,  and  goes  to  the  yard  once, 
about  12  o'clock.  On  the  next  morning  (Monday)  he  is  still 
unwell,  and  complains  of  nausea  and  giddiness,  but  eats  some 
breakfast  in  bed.  He  vomits  at  about  10  o'clock,  a.  m.,  and 
again  about  4  or  5  o'clock,  p.  m. 

"  At  4  or  5  o'clock,  p.  m.  of  the  same  day,  he  is  visited  by 
a  physician,  who  finds  him  very  much  nauseated,  pale  and 
prostrated,  with  a  rapid  and  feeble  pulse,  sitting  up,  and  hold- 
ing a  slop-bucket  between  his  knees,  into  which  he  vomits  fre- 
quently. A  dose  consisting  of  two  drops  of  creosote,  and  a 
tablespoonful  of  lime-water,  is  given  him,  and  ordered  to  be 
repeated  every  second  hour,  and  it  relieves  him.  He  is  seen 
again,  at  2  o'clock,  p.  m.,  on  Tuesday,  sitting  upon  the  side  of 
his  bed,  examining  his  watch,  but  makes  no  remark. 


OPINION    EVIDENCE.  871 

dence  in  an  inquiry  as  to  the  genuineness  of  a  picture ;  a 
ship-builder,  after  having  heard  the  evidence  of  persons 
who  have  examined  a  ship,  may  give  his  opinion  as  to 

"  He  is  visited  by  his  physician  again   on  Tuesday  morn 
ing,   about    10   o'clock,   and  is  found    asleep,    but,   on   being 
aroused,  expresses  himself  as  well  enough  to  leave  Baltimore 
during  the  day.     He  continues  to  sleep   during  the  morning 
and  when   aroused  and   induced  to  walk  from   his  bed  to  s 
lounge  in  the  room,  seems  feeble  and  exhausted.     He  returnr 
to  his  bed,  and  sleeps  heavily,  with   heavy  breathing,  for  sev 
eral   hours.     He  is  again   aroused,  and  returns  to  the  lounge 
while  his  bed  is  being  made  up.      In  walking  from  the  bed  to 
the   lounge,  it  is  observed  that   he  has  difficulty   in   walking, 
that  his  gait  is  unsteady,  and  that   he  staggers   as  he   moves 
along.    He  lies  down  on  the  lounge.    No  vomited  matters  are 
found  in  his  room  during  the  whole  of  that  day,  and  he  passes 
no  urine.       At  6  o'clock,  p.  m.,  he  is  discovered   sleeping   pro- 
foundly, and  breathing  stertoriously,  but  afterwards,  without 
waking,  changes  his  position,  and  seems   to   breathe   better. 
He  spends  the  night  on  the  lounge.     His  physician  is  sent  for 
on    Wednesday    morning,   and   visits    him    about   10  o'clock, 
a.  m.,  and  finds  him   semi-comatose,  with  a  feeble  and   rapid 
pulse;  pupils  natural  in  size  and  insensible  to  light;  respira- 
tio-n  slightly  hurried,  and  the  muscles  of  the  neck,  back,  and 
extremities   rigid  ;  he  is  aroused  with  difficulty,  and   immedi- 
ately  relapses   into  a  profound   sleep  ;  a   tremor  passes  over 
him  when  touched  ;  he  can  only  articulate  a  single  word  at  a 
time,   and  is  unable  to  frame  a  sentence;  he  has  passed   no 
urine  for  more  than  twenty-four  hours  ;  no  special  relaxation 
of  such    muscles  as  are  not  rigid,  is  observed  ;  his   face    is 
turned   towards  the  back  of   the   lounge,  and  is  livid,  of  a 
purplish,  bluish,  and  reddish  tinge. 

"At  n  o'clock,  a.  m.,  forty  drops  of  the  tincture  of  yellow 
jessamine  (gelseminum)  are  administered  in  two  teaspoonfuls 
of  water,  his  physician  having  previously  removed  him  lo  his 
bed,  and  applied  ice  to  his  head  ;  his  teeth  are  clenched  ;  his 
jaws  are  opened  with  difficulty  to  receive  the  medicine.  In  <, 
short  time  his  color  improves,  and  his  eyes  look  notably  bet- 
ter, although  he  still  remains  unconscious  and  rigid.  He  then 
shows  signs  of  great  restlessness,  struggles  to  get  out  ot  bed, 
and  then  relapses  into  a  state  of  quiescence  and  semi-con- 
sciousness. At  five  minutes  before  1  o'clock,  another  dose  is 
administered,  containing  more  liquid,  between  two  and  three 


872     SECONDARY    RULES     OF    EVIDENCE. 

whether  she  was  seaworthy  ;  and  where  the  question 
was,  whether  a  bank  which  had  been  erected  to  prevent 
the  overflowing  of  the  sea,  had  caused  the  choking  up 

tablespoonfuls,  as  alleged,  and  in  about  15  minutes  afterwards, 
he  slaps  the  shoulder  of  an  attendant,  grasps  the  back  of  his 
neck,  seizes  various  parts  of  his  body,  scratches  himself  with 
his  nails,  utters  disjointed  words  and  cries,  and  then  is  seized 
with  tetanic  convulsions.  Opistholonos  is  developed.  At 
each  convulsive  movement  there  seemed  to  be  a  systematic 
effort  to  throw  himself  on  his  left  side;  he  emits  groans; 
trismus  shows  itself;  coma  increases,  and  the  patient  is  ap- 
parently in  articulo  mortis.  At  about  1:30  o'clock,  p.  m., 
chloroform  is  administered,  and  at  about  2  o'clock,  p.  m.,  30 
grains  of  chloral  are  given,  and  at  about  3  o'clock,  p.  m.,  he 
dies,  without  abatement  in  his  symptoms. 

"  His  urine  is  drawn  off  about  1:30  o'clock,  p.  m.,  and 
tested  with  nitric  acid  and  heat,  without  the  discovery  of  any 
abnormal  substance  in  it. 

"  The  post-mortem  examination  reveals  a  rigor  mortis,  rea 
marks  like  scratches  on  his  neck  and  abdomen,  some  red 
patches  in  the  mucous  coat  of  the  stomach  and  intestines,  but 
no  product  of  inflammatory  action ;  the  liver,  spleen,  eso- 
phagus, lungs,  and  heart  in  a  healthy  condition  ;  the  vessels  of 
the  dura  mater  were  not  very  full  of  blood  ;  the  vessels  of  the 
pia  mater  somewhat  congested  ;  the  veins  filled  with  dark 
blood,  indicating  passive  congestion  ;  the  brain  substance 
natuial  and  healthy,  with  some  dark  points  of  blood,  indi- 
cating passive  congestion  on  its  cut  surface,  'such,'  in  the 
language  of  his  physician,  '  as  are  frequently  produced  bv  the 
mere  act  of  dying,  and  which  may  have  been  post-mortem  ' ; 
no  extravasation  of  blood  ;  no  increase  or  diminution  of  the 
cerebro-spinal  fluid  ;  no  effusion  of  serum,  and  no  signs  or 
results  of  inflammation  in  any  orsfan  or  structure  ;  about  two 
inches  of  the  spinal  cord,  the  medulla  oblongata,  were  exam- 
ined without  the  discovery  of  lesions.  The  rest  of  the  spinal 
cord  itself  was  not  examined. 

"  From  the  symptoms  as  there  described,  and  the  post- 
mortem revelations  there  described,  do  you  think  the  deceased 
died  from  natural  or  non-natural  causes? 

"  Dr  Morris  replied  :  It  is  a  very  difficult  and  delicate 
question  ;  but  if  I  were  asked  that  naked  question,  and  had 
no  knowledge  of  surrounding  things,  [  could  not  assign  a 
cause  0}   death  ;   I  see  nothing  to  exclude  the  theory  of  death 


OPINION    EVIDENCE..  873 

of  a  harbGr,  the  opinions  of  scientific  engineers  as  to 
the  effect  of  such  an  embankment  upon  the  harbor, 
were  held  admissible  evidence,  (m)     To  these  it  may 

(m)  1  Greenl.  Ev.  §  440,  7th  Ed. 

from  a  natural  cause,  but,  at  the  same  time,  I  can  not  venture 
to  say  what  that  natural  cause  was  or  might  have  been.  Dr. 
Warren  saw  two  cases  of  mine — -one  of  an  adult  and  one  of  a 
chid  ;  in  truth,  I  invited  the  whole  profession,  as  far  as  I 
could,  to  see  my  case,  so  anxious  was  I  to  investigate  the  na- 
ture of  this  new  and  insidious  disease  ;  it  is  at  least  new  to  us 
in  Baltimore;  two  of  my  cases  (of  children)  were  suddenly 
taken,  after  returning  from  school,  with  the  characteristic 
symptoms,  which  manifested  themselves  in  forty-eight  hours; 
then  the  fulmination  terminated  ;  one  case  was  of  a  vigorous, 
stout  man,  and  he  still  lives  to  tell  the  story." 

It  was  held,  however,  in  the  subsequent  trial  of  Mrs. 
Wharton  for  an  attempt  to  poison  Mr.  Van  Ness,  that  a  hypo- 
thetical question  thus  put  by  one  party,  can  not  be  objected 
to  by  the  other,  on  the  ground  that  it  does  not  contain  all  the 
facts  of  the  case. 

But  a  witness  can  not  be  called  to  give  an  opinion  on  a 
mere  probability.  People  v.  Rogers,  13  Abb.  N.  S.  370;  and 
see  Moorhouse  v.  Mathews,  2  Comst.  514.  A  witness  un- 
skilled in  the  science  or  art  touching  which  his  opinion  is 
asked,  is  incompetent  to  give  an  opinion.  He  can  only  state 
facts,  and  the  jury  must  draw  the  conclusions.  Liming  v.  State, 
1  Chand.  (Wis.)  178.  But  a  question  whether  two  pieces  of 
wood  were  part  of  the  same  stick  of  natural  growth  is  one  for 
the  testimony  of  experts.  Commonwealth  v.  Choate,  105 
Mass.  451.  The  testimony  of  experts,  as  experts,  can  not  be 
received  on  subjects  of  general  knowledge  familiar  to  men  in 
general,  and  with  which  jurors  are  presumed  to  be  acquainted. 
Concord  Railroad  v.  Greeley,  3  Fost,  (N.  H.)  237.  But  the  opin- 
ion should  be  accompanied  by  the  facts.  Crawford  v.  Andrews,  6 
Geo.  244;  Robertson  v.  Stark,  15  N.  H.  109.  As  a  general 
rule,  the  opinion  of  witnesses  is  not  to  be  received  in  evidence, 
merely  because  they  may  have  had  some  experience  or  greater 
opportunities  of  observation  than  others,  unless  they  relate  to 
matters  of  skill  and  science.  Robertson  v.  Stark,  15  N.  II. 
109;  Marshall  v.  Columbian  Ins. Co., 7  Fost.(N.H.)  157;  Pro- 
tection Ins.  Co.  v.  Harmer,  2  Ohio  (Warden)  452;  People  v. 
Godine,  1  Denio.  281  ;  Smith  v.  Gugerty,  4  Barb.  614  ;  Westlake 
v.    St.    Lawrence    &c.    Ins.    Co.,    14    Barb.    206 ;     Folkes    v 


874     SECONDARY    RULES     OF    EVIDENCE. 

be  added,  that  the  opinions  of  antiquaries  have  been 
received  relative  to  the  date  of  ancient  hand-writing 
(«)  and  where,  on  an  indictment  for  uttering  a  forged 
instrument,  the  question  was,  wThether  a  paper  had 
originally  contained  certain  pencil-marks,  which  were 
alleged  to  have  been  rubbed  out  and  writing  substi- 
tuted in  their  stead  ;  the  opinion  of  an  engraver, — who 
was  in  the  habit  of  looking  at  minute  lines  on  paper, 
and  who  had  examined  the  document  with  a  mirror, — 
as  to  such  marks  having  existed,  was  held  to  be  ad- 
missible,— but  with  the  reservation,  that  the  weight  of 
the  evidence  would  depend  on  the  extent  to  which  it 
might  be  confirmed.  (6)  l     It  is  on  this  principle  that 

(«)  Tracy  Peerage  case,  10  CI.  &  F.  (o)  Per  Parke,  B.,  and  Tindal,  C.  J., 

154.  R.  v.  Williams,  S  C.  &  P.  434,  435. 

Chudd,  3  Dong.  157  ;  1  Smith's  Leading  Cases,  630,  5th  Am. 
Ed.;  Daniels  v.  Mosher,  2  Mich.  183.  But  the  expert's  opinion 
must  be  based  on  all  the  evidence.  If  he  has  only  heard  a 
part,  his  testimony  can  not  be  received.  Luning  v.  State,  1 
Chand.  (Wis.)  17S;  see  State  v.  Clark  12  Ired.  151. 

In  Morse  v.  Crawford,  17  Vt.  499,  it  was  held  that  a  wit- 
ness, not  a  professional  man,  may  give  his  opinion  in  evidence 
in  connection  with  the  facts  upon  which  it  is  founded,  and  as 
derived  from  them. 

An  expert  may  testify  to  general  facts  which  are  the  re- 
sults of  general  knowledge  or  scientific  skill.  Emerson  v. 
Lowell  Gas   Light  Co.,  6  Allen,  148. 

1  See  ante,  vol.  1,  p.  438,  note  1.  The  following  additional 
authorities,  as  to  proof  of  hand-writing,  are  valuable  :  A  pho- 
tographer, accustomed  to  examine  hand-writing  with  a  view 
to  detect  forgery,  may  give  his  opinion,  based  on  photo- 
graphic copies,  made  by  himself,  and  introduced  in  evidence, 
and  testified  as  accurate  by  himself.  Marcy  v.  Barnes,  82 
Mass.  (16  Gray)  161  ;  and  see  Tyler  v.  Todd,  36  Conn.  218; 
Taylor  Will  Case,  10  Abb.  (N.  Y.)  Pr.,  N.  S.  301.  On  a 
criminal  trial,  an  expert  in  hand-writing  may  testify  that,  i  1 
his  opinion,  certain  anonymous  letters  written  in  a  di 
guised  hand,  are  in  the  defendant's  hand-writing;  but  he  can 
not  be  asked  whether  the  writing  was  executed  with  a  pe- 
culiar instrument  found  in  the  defendant's  possession      Com 


OPINION    EVIDENCE.  875 

the    evidence    of    professional    or   official    persons   is 
receivable  as  proof  of  foreign  laws.  (/)  1     From  the 

(/  )  Tayl.  Ev.  $  1280,  4th  Ed.;  The  E.  20S  ;  Bristow  v.  Sequeville,  5  Exch. 

Sussex   Peerage  case,  11  CI.  &  F.  85  ;  275  ;  Vander  Donckt  v.  Thellusson,  JS 

Earl  Nelson  v.  Lord  Bridport,  8  Beav.  C.  B.  812  ;    Perth  Peerage  case,  2  Ho 

527  ;    The  Baron  de  Bode's  case,  8  Q.  Lo.  Cas.  874. 

monwealth  v.  Webster,  5  Cush.  295.  Experts'  opinions  as  to 
what  is  the  date  of  a  certain  instrument,  may  be  taken  in  evi 
dence,  where  the  figures  expressing  the  date  are  obscure  and 
difficult  to  be  deciphered.  Stone  v.  Hubbard,  7  Cush.  595. 
But  as  to  the  admissibility  of  expert  opinions  as  to  whether 
a  signature  is  genuine  or  imitated,  see  Furber  v.  Hilliard,  2 
N.  H.  480.  A  person  skilled  in  judging  hand-writing  is  not 
therefore  competent  to  give  his  opinion  whether  an  erasure 
has  or  has  not  been  made  in  an  instrument.  Swan  v.  O'Fal- 
lon,  7  Miss.  231.  It  is  now  well  established  that  opinions  as 
to  the  genuineness  of  hand-writing  drawn  from  a  comparison 
of  hands,  are  not  admissible  in  evidence.  Haskins  v.  Stuy- 
vesant,  Anthon.  97  ;  Smith  v.  Walton,  8  Gill.  77  ;  People  v. 
Spooner,  1  Den.  343.  A  witness  must  have  drawn  his  knowl- 
edge either  from  havino-  seen  the  person  write,  or  from  long 
familiarity  with  his  hand-writing,  and  must  swear  to  the  cor- 
respondence of  the  signature  with  an  exemplar  existing  in  his 
own  mind.  Kinney  v.  Flynn,  2  R.  I.  319  ;  McKonkly  v.  Gaylord, 
1  Jones  L.  (N.  C.)  94;  Gordon  v.  Price,  10  Ired.  385  ;  Reyburn 
v.  Bellotti,  10  Miss.  597;  McAllister  v.  McAllister,  7  B.  Mon. 
269.  Little  v.  Beazly,  2  Ala.  703,  holds  that  signatures  proved 
to  be  in  the  party's  hand-writing,  can  not  be  given  in  evidence 
to  the  jury  for  the  purpose  of  comparison,  to  prove  genuine- 
ness. But  it  was  held  in  Commonwealth  v.  Williams,  that  the 
testimony  of  one  whose  experience  had  been  limited  to  the 


1  See  a  determination  as  to  the  competency  of  a  witness  not 
a  member  of  the  French  bar,  to  prove  the  law  of  France,  in 
Dauphin  v.  United  States,  6  Ct.  of  CI.  221  :  A  Spanish  lawyer 
who  had  practiced  in  Cuba  was  permitted  to  testify  from  a 
printed  copy  of  the  Spanish  code  of  commerce  as  to  the  law 
regulating  special  partnerships  in  Cuba.  And  see  Matter  of 
Roberts'  will,  8  Paige,  446. 

On,the  trial  of  an  action  on  a  judgment  obtained  in  another 
state,  testimony  of  experts  from  that  state  is  admissible  to  show 
whether  a  service  proved  to  have  been  made  was  sufficient  to 
support  the  judgment.     Mowry  v.  Chase,  100  Mass.  79. 


876      SECONDARY    RULES     OF    EVIDENCE. 

very  nature  of  the  subject,  experts  can  only  speak  to 
their  judgment  or  belief. ' 

514.   But  the  weight  due  to  this,  as  well  as  to  every 

comparison  of  promissory  notes,  was  admissible  in  a  criminal 
trial  as  to  whether  two  letters  were  written  by  the  same  hand, 
A  witness  who  has  never  seen  a  person  write  before  the  con- 
troversy arose,  can  not  be  asked  his  opinion  as  to  that  person's 
hand-writing  ;  Pate  v.  People,  3  Gilm.  644  ;  or  one  who 
judges  merely  from  the  comparison  in  court  ;  Page  v.  Ho- 
mans,  2  Shepl.  47S;  Wilson  v.  Kirkland,  5  Hill,  682.  In  all 
cases  the  witness  must  first  state  his  means  of  acquiring  the 
knowledge  of  the  hand-writing  as  to  which  he  gives  his  opin- 
ion. McCracken  v.  West,  17  Ohio,  16.  But  see  Common- 
wealth v.  Eastman,  1  Cush.  189,  which  held  that  if  hand-writing 
is  to  be  proved  by  comparison,  the  standard  used  for  the  pur- 
pose must  be  a  genuine  and  original  writing,  first  established 
by  undoubted  proof;  and  that  impressions  of  writings  taken 
by  means  of  a  press,  and  duplicates  made  by  a  copying  ma- 
chine, can  not  be  used  as  standards  of  comparison.  And  in 
Robertson  v.  Miller,  1  McMullan,  120,  it  was  held  that  a  com- 
parison was  admissible  where  there  is  conflicting  testimony  as 
to  the  genuineness  of  a  signature,  to  enable  a  jury  to  decide 
as  to  the  credibility  of  witnesses.     It  was  said  in  Rogers  v. 


1  In  Paige  v.  Parker,  40  N.  H.  47,  it  is  said  'that  in  order  to 
entitle  persons  to  testify  as  experts  it  must  be  first  shown 
that  they  arc  possessed  of  superior  actual  skill  or  scientific 
knowledge  upon  the  subject,  and  that  a  mere  opportunity  for 
observation  is  not  sufficient.  And  see  Pelamourges  v.  Clark 
9  Iowa,  1.  Courts  will  not  go  into  the  specialty  of  his  expe- 
rience, however.  Delaware,  &c.  Towboat  Co.  v.  Starrs,  69  Pa. 
St.  36.  But  in  general,  persons  have  been  admitted  to  testify 
as  experts  upon  showing  that  they  have  been  educated  in  the 
peculiar  art  or  profession.  Opinions  of  unprofessionals  are 
received  ordinarily  as  to  one's  pecuniary  standing.  Bank  of 
Middlebury  v.  Rutland,  33  N.  H.  414.  Or  to  the  value  .of 
property.  1  Nellis  v.  McCarn,  35  Barb.  115;  McDonald  v 
Christie,  42  Id.  36  ;  Derby  v.  Gallup,  5  Min.  119.  But  see  as 
to  rule  olherwise  in  New  Hampshire,  Low  v.  C.  &  P.  R.  Ry. 
Co.;  Brady  v.  Brady,  8  Allen,  ioi.  Testimony  of  experts  is 
not  admissible  as  to  matters  of  judgment  within  the  experi- 
rience  or  knowledge  of  ordinary  jurymen.  New  England 
'xlass  Co.  v.  Lovell,  7  Cush.  321  ;  White  v.  Ballou,  8  Allen,  4C8. 


OPINION    EVIDENCE.  877 

other  kinc  of  evidence,  is  to  be  determined  by  the 
tribunal ;  which  should  form  its  own  judgment  on  the 
matters  before  it,  and  is  not  concluded  by  that  of  any 

Ritter,  12  Wall.  317,  that  when  the  court,  on  preliminary  ex- 
amination of  a  witness,  can  see  that  he  has,  in  any  way,  ac- 
quired knowledge  which  will  enable  him  to  judge  as  to  the 
genuineness  of  hand-writing,  he  should  be  permitted  to  give 
his  opinion  to  the  jury.  A  paper  proved  or  admitted  to  be 
genuine,  is  not  admissible  in  evidence  merely  for  the  purpose 
of  showing  the  genuineness  of  another  paper  by  a  compari- 
son of  hands.  And  in  an  indictment  for  forgery,  the  mere  fact 
that  a  genuine  paper  is  copied  in  the  indictment,  without  any 
allegation  respecting  it,  does  not  render  it  admissible  for  that 
purpose.     State  v.  Givens,  5  Ala.  747. 

But  to  prove  the  hand-writing  of  a  person  who  had  been 
dead  upwards  of  forty  years,  witnesses  may  speak  from  a  com- 
parison of  such  hand-writing  with  signatures  and  writings  in 
family  records,  which  are  admitted  to  be  genuine,  or  with  let- 
ters  in  the  possession  of  his  family,  purporting  to  be  signed 
by  him,  or  with  official  documents  which  have  been  received 


So  it  has  been  held  that  mere  opinions  as  to  an  amount  of  dam- 
age sustained  will  not  be  received.  Harger  v.  Edmonds,  4 
Barb.  256;  Giles  v.  O'Toole,  Id.,  261;  Walker  v.  Protection 
Ins.  Co.,  16  Shepl.  317.  Or  mere  opinions  as  to  the  value  of 
property  in  common  use,  such  as  horses,  wagons,  or  lands, 
concerning  which  no  particular  study  is  required.  Robertson 
v.  Stark,  15  N.  H.  109  ;  Mish  v.  Wood,  34  Penn.  451  ;  Boston, 
&c.  R.  R.  Co.  v.  Old  Colony  R.  R.  Co.,  3  Allen,  142  ;  Dole  v. 
Johnson,  50  N.  II.  452;  Rochester  v.  Chester,  3  N.  H.  349; 
Peterborough  v.  Jaffrey,  6  Id.  482  ;  Whipple  v.  Walpole,  10  Id. 
130.  But  the  rule  is  not  undoubted.  See  Shaw  v.  Charles- 
town,  2  Gray,  107  ;  Vandine  v.  Burfee,  6  Met.  (Mass  )  288. 
But  the  opinion  of  an  expert  based  on  general  observations 
of  sales,  &c,  is  admissible  as  to  the  marketable  value  of  a 
dog.  Cantling  v.  Hannibal,  &c.  R.  R.  Co.,  54  Mo.  385.  And 
as  to  the  value  of  lumber,  the  proximity  of  the  locality  where 
the  witness  attained  his  experience  will  be  considered.  Law- 
ton  v.  Chase,  108  Mass.  238;  Dole  v.  Johnson,  50  N.  H.  452; 
see  Greeley  v.  Stilson,  27  Mich.  153.  Farmers  and  dairymen 
are  competent  witnesses  as  experts  in  an  action  to  recove. 
damages  for  the  adulteration  of  milk.  Lane  v.  Wilcox,  55 
Barb.  615.      In  an   action  for  communicating  the   foot-rot   to 


878     SECONDARY    RULES     OF    EVIDENCE. 

witness,  however  highly  qualified  or  respectable.  Nor 
is  this  always  an  easy  task  ;  there  being  no  evidence  the 
value  of  which  varies  so  immensely  as  that  now  under 

and  acted  upon  as  genuine  in  the  proper  offices.  Swergait  v. 
Richards,  8  Barr.  436.  It  was  held  in  Woodford  v.  McClena- 
han,  4  Giltn.  85,  and  in  Edelen  v.  Gough,  8  Gill,  89,  that  one 
who  has  seen  a  person  write  but  once  is  competent  to  prove 
his  hand-writing.  And  see  also  Pepper  v.  Barnett,  22  Gratt. 
405.  But  one  who  has  received  letters  purporting  to  be  from 
a  certain  person,  and  who  has  answered  them,  but  received  no 
reply,  is  not  a  competent  witness  as  to  that  person's  hand- 
writing. Webb  v.  Maurio,  1  Morris,  (Iowa)  329.  And  the 
papers  admitted  to  prove  genuineness,  maybe  sent  to  the  jury. 
Robertson  v.  Miller,  1  M'Mullen,  120. 

The  testimony  of  experts  is  admitted  in  corroboration  of 
positive  evidence  to  prove  that,  in  their  opinion,  the  whole  of 
an  instrument  was  written  by  the  same  hand,  with  the  same 
pen  and  ink,  and  at  the  same  time  ;  Fulton  v.  Hood,  34  Penn. 
365  ;  or  to  aid  the  court  in  reading  an  instrument.  Greenleaf 
on  Evidence,  1,  §  280.  If  a  question  arises  from  the  obscurity 
of  the  writing  itself,  it  is  to  be  determined  by  the  court  alone. 
Id.   citing    a  nisi  prius  decision   said  to  have  been  made  by 

sheep,  the  editor  of  a  stock  journal  who  had  read  extensively 
on  the  subject  was  admitted  to  testify  as  an  expert.  Dole  v. 
Johnson,  50  N.  H.  452.  In  an  action  for  damages  caused  by 
the  falling  of  an  upper  berth  upon  plaintiff  upon  defendant's 
steamboat,  one  testifying  to  long  and  thorough  acquaintance 
with  the  construction  of  berths  on  steamboats  is  admissible 
as  an  expert.  Tinney  v.  New  Jersey  Steamboat  Co.,  1  Abb.  Pr., 
N.  S.  1.  Practicing  lawyers  are  experts  as  to  the  value  of  an 
attorney's  services.  Allis  v.  Day,  14  Minn.  516;  and  see 
Smith  v.  Kobbe,  59  Barb.  289.  A  carpenter  of  twenty-five 
years'  experience  is  an  expert,  and  may  testify  as  to  damage 
caused  by  defective  construction  of  a  cellar  under  a  house  he 
was  employed  in  building.  Moulton  v.  McOvven,  103  Mass. 
587.  Whether  a  person  appeared  as  if  intoxicated  may  be 
shown  by  the  opinion  of  an  ordinary  vitness.  People  v. 
Eastwood,  14  N.  Y.  562. 

The  rule  determining  the  subjects  upon  which  experts  may 
testify,  as  well  as  the  rules  as  to  their  qualifications,  are  matters 
of  law  ;  but  as  to  whether  a  witness  offered  as  an  expert  has  those 
qualifications,  is  a  question  of  tact.  Jones  v.  Tucker,  41  N.  H. 
546.     So  it    the  grounds  of  his  knowledge  seem  to  be  slight, 


OPINION    EVIDENCE.  879 

consideration,  and  respecting  which  it  is  so  difficult  to 
lay  down  any  rules  beforehand.  Its  most  legitimate, 
valuable,  and  wonderful  application   is  on  charges  of 

Lord  Denman,  Reymen  v.  Haywood,  2  Adol.  &  Ellis,  666,  no.e. 
But  see  Jackson  exdem.  Swain  v.  Ransom,  where  a  lot  of  land 
was  described  in  a  deed  by  a  number  expressed  in  figures, 
which  the  plaintiff  read  174  and  the  defendant  84,  and  where 
upon  an  examination  of  the  whole  deed,  the  jury  and  court 
were  both  satisfied  that  it  was  174,  it  was  held  a  sufficiently 
certain  description.  This  point  arose  and  was  held,  contrary 
to  Dr.  Greenleafs  rule,  in  an  English  case  in  the  common 
pleas,  not  cited  by  the  author.  Armstrong  v.  Burrows,  6 
Watts  R.  266.  There  the  parties  differed  about  the  date  of  a 
receipt  which  had  become  illegible,  one  reading  it  1823  and 
the  other  1824.  The  court  assumed  the  exclusive  right  of 
determining  what  the  figures  were,  and  refused  to  put  the  case 
to  the  jury.  On  this  ground  error  was  brought  to  the  supreme 
court,  where  the  judgment  of  the  common  pleas  was  reversed. 
Gibson,  Ch.  J.,  delivering  the  opinion  of  the  supreme  court, 
said  :  "  A  writing  is  read  before  it  is  expounded,  and  the 
ascertainment  of  the  words  is  finished  before  the  business  of 
exposition  begins.  If  the  reading  of  a  judge  were  not  mat- 
ter of  fact,  witnesses  would  not  be  heard  in  contradiction  of 
it;    and  though  he  is  supposed  to  have  peculiar  skill  in  the 

and  derived  from  hearsay;  Clark  v.  Bigelow,  4  Shepley,  246- 
Nute  v.  Nute.  41  N.  H.  60;  he  will  be  rejected;  but  see  Dun- 
ham's appeal,  27  Conn.  193.  But  experience  or  observation 
may  be  competent.  So,  in  an  action  for  breach  of  promise  to 
marry,  a  person  accustomed  to  observe  the  mutual  deportment 
of  the  parties,  may  give  his  opinion  as  to  whether  they  were 
attached  to  each  other.  McKee  v.  Nelson,  4  Cow.  355.  Bu. 
upon  the  question  as  to  whether  certain  implements  were  part 
of  the  necessary  tools  of  a  person's  trade,  the  opinions  of  wit- 
nesses are  not  admissible,  but  it  is  for  the  jury  to  determine 
upon  the  facts  proved.  Whitmarsh  v.  Angle,  3  Am.  Law 
Journ.  274.  A  secretary  of  a  fire  insurance  company  may 
testify  as  to  the  probable  increase  of  risk  to  a  dwelling-house, 
by  the  proximity  of  a  railway  ;  but  see  Joyce  v.  Maine  Ins.  Co., 
45  Me.  168;  Webber  v.  Eastern  R.  R.  Co.,  2  Met.  147;  or  one 
for  a  long  time  acquainted  with  a  certain  stream,  may  testify 
as  to  the  sufficiency  of  a  dam  to  resist  its  force  in  times  oi 
freshet;  Porter  v.  Poquonnoc  Mfg.  Co.,  17  Conn.  249.   A  practi- 


8So      SECONDARY    RULES    OF    EVIDENCE. 

poisoning,  where  poison  is  extracted  from  a  corpse  by 
means  of  chemical  analysis,  (q)  "It  is  surely,"  says 
Dr.  Beck,  (r)  "  no  mean  effort  of  human  skill,  to  be 

(q)  Supra,  ch.  2,  sect.  3,  subs-ect.  2.  (r)  Beck's  Med.  Jur.  1085,  7th  Ed. 

meaning  and  construction  of  language,  neither  his  business 
nor  learning  is  supposed  to  give  him  a  superior  knowledge 
of  figures  or  letters.  His  right  to  interpret  a  paper  written 
in  Coptic  characters,  would  be  the  same  that  it  is  to  interpret 
an  English  writing;  yet  the  words  would  be  approached  only- 
through  a  translation.  The  jury  were  therefore  not  only 
legally  competent  to  read  the  disputed  word,  but  bound  to 
ascertain  what  it  was  meant  to  represent.  And  see  the  English 
cases  of  Masters  v.  Masters,  1  P.  Williams,  421,  425  ;  Norman 
v.  Morrell,  4  Vest.  769,  770;  Goblet  v.  Beechey,  3  Sim.  24; 
Wigram  on  Extr.  Ev.,  185,  3d  ed.  In  Cowen  &  Hill's  notes  to 
Phillips  on  Evidence,  419,  it  is  said  that  where  a  writing  is 
illegible  from  lapse  of  time,  accident,  &c,  one  skilled  in  deci- 
phering— as,  e.  g.,  a  clerk  in  a  post  office — may  be  called.  And 
see  Sheldon  v.  Benham,  4  Hill,  129. 

cal  surveyor  may  testily  as  to  whether  certain  marks  on  piles 
of  stone,  &c,  were  meant  for  monuments  or  marks  of  bound- 
ary. Davis  v.  Mason,  4  Pick.  156.  It  is  said  that  he  can  not 
be  asked  whether,  in  his  opinion,  a  tract  surveyed  by  him  is 
identical  with  a  tract  marked  on  a  chart  or  diagram  (1  Green- 
leaf  on  Evidence,  440);  but  it  was  held  in  Merser  v.  Reginnil- 
ter,  32  Iowa,  312,  that  he  may  give  in  evidence  his  opinion  as 
to  the  correctness  of  a  plat. 

Witnesses  are  not  admissible  to  state  their  opinions  as  to 
matters  of  legal  or  moral  obligation,  or  as  to  the  manner  in 
which  others  than  himself  would  probably  be  influenced,  if 
parties  acted  in  one  way  rather  than  in  another  (Greenleaf  on 
Evidence,  1,  §  441).  A  witness,  e.  g.,  can  not  be  asked  what 
would  have  been  his  own  conduct  in  a  particular  case  (Id.) ; 
Joyce  v.  Maine  Ins.  Co.,  45  Me.  168;  or  whether  a  physician 
had  performed  his  duty  skillfully  (Greenleaf  on  Evidence,  1, 
§  441) ;  but  in  an  action  for  assault  with  intent  to  kill,  evidence 
of  experts  as  to  the  location,  character,  and  probable  conse- 
quences of  the  wonnd  inflicted  is  proper  as  bearing  upon  the 
intent  of  the  defendant.  People  v.  Kerrains,  1  Thomp.  &c 
(N.  Y.)  333  Jut  the  general  rule  as  to  expert  testimony 
admits  of  many  modifications,  under  peculiar  circumstance? 
arising  in  every  case,  and  the  student  of  this  branch  of  evi- 
dence will  do  well  to  observe  them  all. 


OPINION    EVIDENCE.  881 

Drought  to  a  dead  body,  disinterred  perhaps  after  it  has 
lain  for  months,  or  even  years  in  the  grave  ;  to  examine 
its  morbid  condition  ;  to  analyze  the  fluids  contained  in 
it  (often  in  the  smallest  possible  quantities)  ;  and  from 
a  course  of  deductions  founded  in  the  strictest  logic  to 
pronounce  an  opinion,  which  combined  circumstances, 
or  the  confession  of  the  criminal,  prove  to  be  correct." 
"  It  is  such  duties,  ably  performed,  that  raise  our  profes- 
sion to  an  exalted  rank  in  the  eyes  of  the  world  ;  that 
cause  the  vulgar,  who  are  ever  ready  to  exclaim  against 
the  inutility  of  medicine,  to  marvel  at  the  mysterious 
power  by  which  an  atom  of  arsenic,  mingled  amidst  a 
mass  of  confused  ingesta,  can  still  be  detected.1     It  does 

'■  A  most   interesting  and  valuable  case,  turning  substan- 
tially upon   the   testimony  of  experts,  as  to   their  search   foi 
poison  in  the  stomach  of  a  deceased   person,   is   presented  by 
the  two  trials  of  Mrs.  Elizabeth  G.  Wharton,  on  the  separate 
charges  of  murder,  by    poisoning,  General    W.  S.  Ketchum 
by  administering  tartar  emetic  (tried  at  Annapolis,  Maryland, 
December  2nd,  1871,  to  January  24th,    1872),   and   of  attempt- 
ing to   murder  Mr.   Eugene  Van   Ness   (tried   at  Annapolis, 
January  6th,  1873).     The  lady  charged  with  these  crimes  was 
supposed  to   be  quite    wealthy,  of   highly    respectable   ante- 
cedents, the  widow  of  Majoi  Wharton   of  the  army.     On   the 
evening  of  June   24th,    1S71,  General    Ketchum,  a  friend  ol 
Major    Wharton,    arrived    at    Mrs.    Wharton's    residence    in 
Baltimore,  intending  to   remain  a  few   days.      On   the   same 
night  he  was  taken  ill,  and  died  on  the  28th.     During  his   ill- 
ness he  was  attended  by  Dr  P.  C.  Williams.  On  the  afternoon 
of  the  24th,  before  Ketchum's  arrival,  Mr.  Eugene  Van  Ness, 
an  intimate  friend  of  the  Wharton  family,  had  called  to  pay  a 
visit  on  his   way  home  from  his  business.     Shortly  after  his 
arrival,  Mrs.   Wharton  offered  him  a  glass  of  beer,  which  she 
said  contained  drops  of  gentian  (a  strong  tonic),  and  her  hos- 
pitality was  accepted.     In  a  short  time  Mr  Van  Ness  became 
very  sick,  and  had  to  remain  in  her  house.      His  family  were 
notified,  and  Dr  Chew  was  summoned  to  attend  him  ;  and  he 
remained  ill  in  the  house  until   after   Ketchum's  funeral.     As 
the  sudden  death  of  General  Ketchum  had  excited  remark,  the 
sickness  of  Mr   Van  Ness,  and  otner  circumstances,  gave  rise 


882      SECONDARY    RULES     OF    EVIDENCE. 

more  :  it  impresses  on  the  minds  of  assassins  who  resort 
to  poison,  a  salutary  dread  of  the  great  impossibility  of 
escaping  discovery."     And  this,  if  properly  done,  must 

to  a  suspicion  of  crime  on  the  part  of  Mrs.  Wharton.  The  re- 
mains of  General  Ketchum  had  been  removed  to  Washing- 
ton,  and  there  a  post  mortem  examination  was  made.  Prof 
William  E.  A.  Aiken  of  the  Maryland  University  was  engaged 
to  analyze  the  contents  of  General  Ketchum's  stomach,  and 
reported  the  presence  therein  of  twenty  grains  of  tartar  emetic; 
upon  this  evidence  a  warrant  was  issued,  and  Mrs.  Wharton 
(who  had  been  making  preparations  to  leave  Baltimore  for 
Europe,  July  ioth),  was  taken  into  custody.  The  defense  to 
the  indictment  for  murder,  relied  on  by  the  prisoner,  was  that 
of  death  from  natural  causes;  and  both  sides  relied  upon  the 
testimony  of  distinguished  experts,  twenty-seven  of  whom 
were  in  all  examined.  According  to  the  practice  of  the  Mary- 
land courts  in  criminal  cases,  the  judge  did  not  charge  the 
jury  The  only  accessible  report  of  that  trial  before  us  is  a 
pamphlet  published  by  the  "  Baltimore  Gazette  "  newspaper, 
containing  its  reports  as  printed  from  day  to  day,  from  which 
we  extract  a  few  of  the  more  important  rulings  : 

By  Miller,  Ch.  J. — That  an  expert  may  give  his  opinion 
in  evidence  when  founded  either  upon  his  observation  or  read- 
ing (p.  22).  That  the  opinion  of  experts  may  be  tested  by  a 
cross-examining  counsel,  by  reading  from  medical  works  (24, 
57,  58,  80,  93,  107,  in,  127),  that  a  question  whether  a  person 
might  not  die  from  poisoning,  and  the  poison  not  be  detected 
in  the  stomach,  should  be  asked  of  a  medical  and  not  a  chemi- 
cal expert  (p.  28).  That  upon  a  trial  for  causing  death  by 
poisoning,  evidence  of  an  alleged  attempt  about  that  time  by 
the  prisoner  to  poison  another  person,  can  not  be  given,  that 
being  a  separate  and  distinct  offense  (p.  41).  That  in  such 
trials  it  was  competent  to  show  that  tartar  emetic  (a  poison) 
had  been  found  in  the  defendant's  house,  and  this  could  be  tes- 
tified to  by  persons  who  had  tasted  it;  and  evidence  was  ad- 
missible of  the  symptoms  of  those  affected  by  it.  Where  an 
expert  as  a  witness  has  been  examined  up  to  a  certain  point, 
and  is  at  the  time  engaged  in  making  an  analysis  of  portions 
of  the  remains  of  the  corpus  delicti,  which  he  announces  he 
can  complete  in  two  days — and  where  the  question  before 
the  court  is  whether  or  not  the  scientific  investigation  can  go 
on,  the  Court  said  •  "  The  case  is  an  extraordinary  one,  and 
the  indictment  charges  a  most  heinous  crime.    A  chemist  who 


OPINION    EVIDENCE.  883 

De  accomplished  without  listening  to  rumor  and  with- 
out permitting  prejudice  to  operate.  Many,  again,  by 
their  researches,  have  saved  the  innocent,  showing  that 

has  analyzed  a  portion  of  the  body  of  the  deceased  has  been 
examined,  and  another  analysis  has  been  diligently  pursued 
since  the  second  exhumation  of  the  body  of  the  deceased.  The 
witness  has  sworn  that  he  has  discovered  the  presence  of 
poison,  and  that  a  delay  of  a  day  or  two  will  enable  him  to 
determine  fully  whether  it  is  antimony  or  arsenic.  The  court 
considers  it  to  be  its  duty  to  allow  that  time.  The  state  mav  go 
on,  and  if  necessary,  the  court  will  take  an  adjournment  to  let 
the  witness  come  back  and  testify  to  what  he  discovers.  If  a 
similar  case  was  presented  by  the  defense,  the  court  would 
allow  them  time  to  make  experiments.  If  in  a  civil  suit  it  was 
necessary  for  a  person  to  send  for  a  paper  to  establish  his  title 
to  property,  the  court  think  it  would  be  monstrous  not  to 
allow  him  reasonable  time  in  which  to  obtain  it."  The  court 
gave  the  State's  Officers  notice  that  if  they  did  not  recall  the 
witness  for  further  examination,  they  must  have  him  in  court 
for  cross-examination  by  the  defense.  And  see  ruling  of 
Miller,  J.  (Id.  p.  141),  allowing  an  expert,  recalled  for  the 
state  in  rebuttal,  to  exhibit  the  results  of  certain  experiments 
he  had  made  while  the  trial  was  in  progress. 

An  expert  can  not  give  his  opinion  as  to  the  conscien- 
tiousness of  another  expert's  experiments;  he  can  only  give 
his  opinion  as  to  their  value,  scientific  results  (pp.  78,  82-87, 
119).  But  see,  as  to  this,  p.  84,  where  portions  of  a  previous 
expert's  testimony  were  read  to  one  subsequently  sworn.  And 
see  extracts  from  testimony  (p.  103-119).  An  extended  hypo- 
thetical case,  describing  symptoms,  doses,  hours,  operations, 
&c,  may  be  read  to  an  expert  for  his  opinion  (p.  108).  And  an 
expert  may  give  his  inferences  drawn  from  the  case  on  trial 
as  thus  presented  to  him,  or  from  the  testimony  itself,  if  he 
has  heard  it  all.  An  interesting  question  as  to  whether  a 
number  of  a  medical  periodical  (in  this  case  "  The  London  Med- 
ical Gazette  "),  was  entitled  to  be  considered  a  medical  treatise 
and  read  from  on  the  trial,  was  raised  by  counsel  for  the 
defense,  but  the  reading  does  not  appear  to  have  been  insisted 
on,  or  ruled  upon  by  the  court. 

That  in  a  trial  for  murder,  where  the  defense  interposed 
is  one  of  death  from  natural  causes,  after  such  a  defense  had 
been  prima  facie  established  by  the  expert  testimony,  the 
prosecution  might   bring  evidence    in   rebuttal    of   such   evi- 


884      SECONDARY    RULES     OF    EVIDENCE. 

accidental  or  natural  causes  have  produced  all  the  phe- 
nomena." It  would  not  be  easy  to  overrate  the  value 
of  the  evidence  given  in  many  difficult  and  delicate 

dence,  so  far  as  related  to  the  hypothetical  statement  of  symp- 
toms (p.  108),  but  the  question  of  death  by  poison  was  closed. 

That — (Hayden,  J.,  dissenting) — on  rebuttal  an  expert 
could  not  exhibit  an  antimonial  compound  to  the  jury.  He 
could  swear  to  the  results  from  the  two  precipitates  in  ques- 
tion. Judge  Hayden  said  it  was  his  opinion  that  the  two 
experiments  (with  and  without  antimony)  could  be  shown  the 
jury,  and  they  allowed  to  judge. 

The  defense  appear  to  have  established  that  the  symptoms 
exhibited  by  General  Ketchum  before  his  death,  were  those  of 
cerebro-spinal  meningitis,  and  the  jury  returned  a  verdict  of 
"  not  guilty." 

Of  Mrs.  Wharton's  second  trial  for  the  attempt  to  poison, 
we  have  only  been  able  to  examine  the  reports  of  the  "  Balti- 
more American  and  Gazette,"  of  January  6th,  1873,  and  suc- 
ceeding days.  As  in  the  previous  case,  a  large  number  of  ex- 
perts were  examined.  The  jury  failed  to  agree  and  were  dis- 
charged. The  following  are  some  of  the  more  important 
rulings  by  Miller,  J.  :  A  witness  for  the  prosecution  (in  this 
case  the  person  whose  life  the  accused  was  alleged  to  have  at- 
tempted), can  not  testify  to  his  suspicions.  That  a  question  as  to 
the  authority  of  text-books  quoted  in  the  progress  of  the  trial, 
does  not  arrse  until  there  is  a  conflict  of  statement  or  opinion 
between  the  text-books  and  the  testimony  of  an  expert.  But 
(in  another  place),  the  opinions  of  medical  experts  can  not  be 
contrasted  with  the  opinions  of  text-writers,  by  asking  whether 
the  witness  agrees  with  what  the  book  says.  An  expert  can  not 
submit  his  opinion  as  to  the  prisoner's  guilt  to  the  jury.  He 
can  not  judge  as  to  the  truth  or  falsity  of  the  statements  made 
to  him  upon  which  to  found  an  opinion.  It  is  proper  to  ask  a 
medical  expert  such  a  question  as,  "  Can  you,  as  a  medical  man, 
account  for  the  symptoms  of  Mr.  Van  Ness,  as  observed  by 
you  pn  Monday  night  or  Tuesday  morning,  based  upon  your 
actual  observations,  and  from  what  you  heard  from  the 
patient  himself,  as  to  what  he  had  taken,  and  how  he  was 
affected  and  had  suffered  up  to  the  time  you  saw  him,  as  you 
have  detailed  in  your  testimony  to  the  jury,  assuming  the 
statements  made  by  Mr.  Van  Ness,  and  as  detailed  by  you,  to 
be  true?  "  An  expert  can  not  testify  as  to  a  conflict  of  opinion 
between  himself  and  another  expert. 

It   is  admissible  to  cross-examine  an  expert  as   to  what 


OPINION    EVIDENCE.  88$ 

inquiries,  not  only  by  medical  men  and  physiologists, 

but   by    learned   and  experienced  persons  in  various 

branches  of  science,  art,  and  trade.     But  as  it  is  impos- 

scientific  works  he  has  read  upon  the  subjects  included  in  his 
direct  examination.  It  is  improper  to  ask  a  medical  expert  if 
it  is  not  his  duty  to  preserve  matter  vomited  up  by  a  patient, 
for  the  purpose  of  analyzing  it.  An  expert  can  not  be  asked 
if  he  has  not  made  experiments  which  were  not  approved 
of  by  the  world  of  science.  An  expert  can  not  be  allowed  to 
express  an  opinion  as  to  what  a  previous  expert  should  have 
done  in  the  way  of  experiment  called  for  by  the  trial.  A 
chemical  expert,  who  is  produced  to  testify  to  a  certain  expe- 
riment performed  by  him  as  to  matters  in  examination  in  the 
trial,  can  not  be  permitted  to  produce  and  exhibit  to  the  jury- 
various  phials  containing  various  solutions  and  precipitates 
used  or  obtained  in  the  course  of  those  experiments. 

In  the  words  of  the  newspaper  report  :  "  To  thoroughly 
demonstrate  the  tests  that  he  had  used  and  their  results,  Prof. 
Tonry  had  with  him  a  great  number  of  little  bottles,  packages, 
microscopic  matters,  and  other  things.  To  illustrate  his  evi- 
dence he  exhibited  two  or  three  of  these  little  phials  containing 
solutions,  but  before  he  could  go  further,  the  defense  made  ob- 
jection, and  the  court  sustaining  it,  ruled  that  no  substances 
could  be  shown  to  the  jury,  although  the  processes  by  which 
they  were  obtained  might  be  minutely  described.  This,  it  was 
said,  was  the  law. 

"  As  a  matter  of  interest,  the  readers  of  <  The  American  ' 
may  wish  to  know  what  things  they  were  that  Professor  Tonry 
was  not  allowed  to  show  to  the  jury.     They  were  as  follows  : 

"  1st.  Milk  punch  made  with  whiskey. 

"  2nd.  Milk  punch  with  sulphuretted  hydrogen  passed 
through  it. 

"  3rd.  Milk  punch  with  tartar  emetic  and  with  sulphuretted 
hydrogen  passed  through  it. 

"  4th.  Orange  red  precipitate  taken  from  the  milk  punch 
No.  3. 

"  5th.  Part  of  sediment  of  tartar  emetic  which  remained 
undissolved.  This  was  to  show  that  though  tartar  emetic  will 
not  dissolve  in  pure  alcohol,  a  part  of  it  will  do  so  in  the 
diluted  form  of  milk  punch.  Professor  Tonry  estimated  the 
proportion  that  would  dissolve. 

"6th.  Same  as  No.  5,  after  treatment  as  Dr.  Aiken  treated 
it,  except  in  muriatic  acid.  It  gave  all  the  results  of  Dr 
Aiken's  tests. 


886      SECONDARY    RULES    OF    EVIDENCE. 

sible  to  measure  a  priori  the  integrity  of  any  witness 
and  equally  so  to  determine  the  amount  of  skill  which  a 
person  following  a  particular  science,  art,  or  trade  may 
possess,  the  tribunal  is  under  the  necessity  of  listening 
to  all  such  persons  when  they  present  themselves  as 
witnesses.    Now,  after  making  every  allowance  for  the 

"  7th.  Milk  punch  made  with  brandy — sugar  sediment. 
8th.  Milk  punch  with  sediment  dissolved  in  water.  9th.  Milk 
punch  acidified  with  tartaric  acid  and  treated  with  sulphur- 
etted hydrogen.  10th.  Antimony  obtained  from  General 
Ketchum's  liver  and  crystalized  as  tartar  emetic,  nth.  Metal- 
lic antimony.  12th.  Metallic  antimony  converted  into  orange 
red  precipitate.  13th.  White  incrustations  of  antimony 
given  in  charcoal.  14th.  Metallic  antimony  from  Marsh's 
test.  15th.  Metallic  antimony  converted  into  orange  red 
precipitate.  16th.  White  precipitate  made  by  antimony  when 
dropped  into  water. 

"  In  addition  to  these  he  had  a  variety  of  things  with 
which  it  is  understood  he  proposed  to  demonstrate  that 
Professor  McCullough  and  his  coadjutors  either  made 
great  mistakes  or  willfully  practiced  a  fraud  on  the  court 
by  claiming,  as  experts,  that  treated  in  exactly  the  same 
way  as  antimony,  both  chloral  and  gelseminum  would 
give  the  same  results  as  antimony.  The  court  ruled 
that  none  of  these  bottles,  and  other  illustrations  and 
demonstrations  could  go  before  the  jury."  —  "Baltimore 
American,"  January  23,  1873.  The  court  overruled  the 
state's  offer  to  introduce  evidence  to  prove  that  while  Van 
Ness  was  ill  at  Mrs.  Wharton's,  General  Ketchum  had  arrived 
there,  on  a  visit,  in  good  health  ;  that  he  had  there  sickened 
and  died,  and  that  a  poisonous  drug  was  found  in  his  viscera, 
and  ruled  that  the  defense  could  not  bring  the  authority  of 
scientific  works  to  corroborate  on  cross-examination  the 
testimony  of  experts.  That  an  expert  witness  can  not  be 
allowed  to  state  the  manner  in  which  he  would  have  con- 
ducted the  analysis;  and  that  the  defense  can  not  be 
allowed  to  ask  an  expert  whether  the  approved  chemical 
authorities  do  not  declare  that  the  reduction  of  the  metal 
in  its  metallic  form  is  the  proper  evidence  of  the  existence 
of  the  substance  in  the  article  analyzed.  An  expert  can 
not  be  asked  what  a  certain  text-book  says  upon  a  certain 
subject,  but  the  book  itself  must  be  produced. 


OPINION    EVIDENCE.  887 

natural  bias  which  witnesses  usually  feel  in  favor  of 
causes  in  which  they  are  engaged,  and  giving  a  wide 
latitude  for  bona  fide  opinions,  however  unfounded  or 
fantastical,  which  persons  may  form  on  subjects  neces- 
sarily depending  much  on  conjecture,  there  can  be  no 
doubt  that  testimony  is  daily  received  in  our  courts  as 
"  scientific  evidence,"  to  which  it  is  almost  profanation 
to  apply  the  term,  as  being  revolting  to  common  sense, 
and  inconsistent  with  the  commonest  honesty  on  the 
part  of  those  by  whom  it  is  given.  In  truth,  witnesses 
of  this  description  are  apt  to  presume  largely  on  the 
ignorance  of  their  hearers  with  respect  to  the  subject  of 
examination,  and  little  dread  prosecution  for  perjury — 
an  offense  of  which  it  is  extremely  difficult,  indeed 
almost  impossible,  to  convict  a  person  who  only  swears 
to  his  belief,  particularly  when  that  belief  relates  to 
scientific  matters,  (s)  On  the  other  hand,  however, 
mistakes  have  occasionally  arisen  from  not  attaching 
sufficient  weight  to  scientific  testimony.  This  arises 
chiefly  wiiere  the  knowledge  of  the  tribunal  and  society 
in  general,  are  very  much  in  arrear  of  the  scientific 
knowledge  of  the  witness.  One  remarkable  instance 
is  cited  by  a  modern  author  on  the  law  of  evidence. 
In  the  infancy  of  traveling  by  steam  on  land,  a  civil 
engineer  of  high  reputation  having  deposed  before  a 
Parliamentary  committee,  that  steam-carriages  might 
very  possibly  be  expected  to  travel  on  railroads  at  the 
rate  of  ten  miles  an  hour,  the  interrogating  counsel 
contemptuously  bid  him  stand  down,  for  he  should  ask 

(s)    Bonnier,     in     his     Traite     des  He    likewise    forcibly  observes,   §   67, 

Preuves,  after  quoting  the  64th  Novel,  "  L'expertise    n'est    qu'un    verre    qui 

which    abundantly    shows    that    these  grossit  les  nbjets  ;   et  c'est  au  juge,  qui 

malpractices  were  well  understood  in  a  la  faculte  de  s'en  servir,  a  examiner 

ancient  Rome,  sarcastically  adds,  "  On  en  toute  liberte  si  les   images  qu'elle 

voit  que  les  complaisances  de  l'exper-  iui  pre'sente  sont  bien  nettes  " 
tise  ne  datent  pas  de  nos  jours."   £  68. 


888     SECONDARY    RULES     OF    EVIDENCE. 

him  no  more  questions,  and  the  weight  of  the  evidence 
he  had  previously  given  was  much  impaired.  (7)  ' 

515.  In  France  experts  are  officially  delegated  by 
the  court  to  inquire  into  facts,  and  report  upon  them  ; 
and  they  stand  on  much  higher  footing  than  either 
ordinary  or  scientific  witnesses  among  us.  Yet  even 
there  it  is  a  maxim,  "  Dictum  expertorum  nunquam 
transit  in  rem  judicatam."  (ti)  But  our  law,  in  its 
desire  to  vindicate  the  unquestionably  sound  ^uinciple, 
that  judicial  and  inquisitorial  functions  ought  to  be 
kept  distinct,  appears  not  to  have  armed  the  courts  with 
sufficient  power  to  compel  the  production  of  evidence. 
For  although  the  power  of  the  courts  to  procure  the 
evidence  of  experts,  has  been  greatly  enlarged  by  recent 
enactments,  (v)  still  it  would  seem,  that  those  enact- 
ments do  not  authorize  the  exercise  of  that  power,  ex 
officio,  but  only  on  the  application  of  a  party  to  the 
action,  (w) 

(t)  Gresley,  Ev.  in   Eq.  369.     Ste-  courts  by  the  22  &  23  Vict.  c.  63,  and 

phenson's   evidence,   before   the   com-  24Vict.cn;  by  the  former  of  which, 

mittee  on  the  Liverpool  and  Manches-  the  courts  in  one  part  of  the  Queen's 

ter    Railway   Bill,  was    received   witli  dominions,  are  empowered  to  remit  a 

equal  incredulity.     See  Smiles'  Life  of  case  for  the  opinion  of  a  court  of  jus- 

Stephenson,  in  loc.  tice  in  any  other  pait  thereof,  on  any 

(ii)  Bonnier,   Traite  des  Preuves,  §  point  on  which  the  law  of  that  other 

74.  part  is  different  from  that  in  which  the 

(v)  See   17  &  18  Vict.  c.  125,  s.  5S  ;  court  is  situate  ;    and  by  the  latter,  to 

36   &   37  Vict.  c.  66,  Sched.  Rule   45,  remit  a  case,  with  queries,  to  the   tri- 

siipra,  §  197.  bunals    of  foreign    countries,  for    the 

(-£/)  Power  to  proceed  ex  officio  in  purpose    of    ascertaining    the    law  01 

certain  cases,  has  been  given  to  the  those  countries. 

1  "  Medical  science,  said  Dr.  Donaldson,  a  witness  in  the 
first  Wharton  trial,  "  is  progressive,  and  we  have  no  security 
that  all  the  theories  now  in  vogue  will  not  be  upset  in  thirty 
years."  (Pamphlet,  p.  58).  See  as  to  experiments  made  in 
the  presence  of  the  jury,  Id.  p.  39.  A  question,  "  Is  chemistry 
a  progressive  science,  a  science  that  is  still  being  improved," 
was  held  not  admissible  on  Mrs.  Wharton's  second  trial. 
Report  of  proceedings,  Jan.  22,  1S73,  in  "  Baltimore  Amer- 
ican." 


OPINION    EVIDENCE.  889 

516.  So  far  as  medical  evidence  is  concerned, 
medical  jurists  complain  that  there  is  too  little  dis- 
crimination exercised,  in  receiving  all  who  are  called 
doctors  as  witnesses.  "  In  England,"  says  an  able 
authority  already  quoted,  (x)  "not  only  physicians, 
surgeons,  apothecaries,  beyond  whom  it  should 
not  be  extended,  but  hospital  dressers,  students,  and 
quacks,  have  been  permitted  to  act  as  medical  wit- 
nesses. '  We  could  point  out  a  case  of  poisoning,'  say 
the  editors  of  the  Edinburgh  Medical  and  Surgical 
Journal,  '  where  the  most  essential  part  of  the  evidence 
depended  on  the  testimony  of  a  quack  alone,  and  it  was 
admitted.'"  But,  to  answer  these  authors  in  their  own 
language,  the  remedy  they  prescribe  is  worse  than  the 
disease.  Must  the  judge,  before  receiving  the  tes- 
timony of  a  man  who  makes  profession  of  the  healing 
art,  institute  a  preliminary  inquiry  as  to  whether  he 
comes  within  the  definition  of  a" quack?  " — one  of  the 
most  uncertain  words  in  the  language,  and  the  correct- 
ness of  the  application  of  which  to  particular  individ- 
uals must  ever,  to  a  certain  extent,  be  matter  of  opin- 
ion. Besides,  it  would  be  at  variance  with  the  free 
spirit  of  our  laws,  to  place  the  lives  and  liberties  of  all 
persons  accused  of  offenses,  in  the  hands  of  a  privileged 
class,  by  prohibiting  them  from  availing  themselves  of 
the  testimony  of  others  who  have  studied  and  prac- 
ticed the  subject  in  question.  Still  it  must  be  con- 
ceded that  our  practice  is  much  too  loose  in  this  re- 
spect— that  when  medical,  or  other  scientific  witnesses 
are  offered,  our  judges  and  jurymen  do  not  inquire 
sufficiently  into  the  causa  sciential, — the  means  which 
they  have  had  of  froming  a  judgment.  To  say  noth- 
ing of  those  palpable  cases  where  the  course  of  study 
has  been  so  short,  or  the  experience  so   limited,  that 

(x)  Beck's   Med.   Jurisp.    ioyi,    71I1  lid. 


890      SECONDARY    RULES     OF    EVIDENCE. 

the  judge  ought  to  reject  the  witness  altogether ;  01  of 
those  where,  though  the  evidence  must  be  received  it 
is  clear  that  little  confidence  ought  to  be  reposed  in 
the  opinion  given, — it  often  happens  that  even  men 
distinguished  in  one  branch  of  a  science  or  profession, 
have  but  a  superficial  knowledge  of  its  other  branches. 
The  most  able  physician  or  surgeon  may  know  com- 
paratively little  of  the  mode  of  detecting  poisons,  ur  of 
other  intricate  branches  of  medical  jurisprudence  ;  so 
that  a  chemist  or  physiologist,  immeasurably  hL  in- 
ferior in  every  other  respect,  might  prove  a  much 
more  valuable  witness  in  a  case  where  that  so>  t  of 
knowledge  is  required,  (jj/)  ' 

(_y)  The  celebrated  John  Hunter,  of  Donellan,  indicted  for  having  poi- 
the  great  anatomist,  who  was  examin-  soned  his  brother-in-law,  uj-ed  to 
ed  as  a  witness  in   the   important  case      express  his  regret  publicly  in  his  lec- 

1  As  to  opinions  of  medical  men,  and  the  modes  of  their 
examination,  see  Erickson  v.  Smith,  2  Abb.  N.  Y.  App.  Dec. 
64;  State  v.  Morphy,  33  Iowa,  270;  Tome  v.  Parkersburg 
R.  R.  Co.,  39  Md.  36;  State  v.  Wood,  53  N.  H.  484;  Tingley 
v.  Cowgill,  48  Mo.  291  ;  State  v.  Porter,  34  Iowa,  131.  A  phy- 
sician examined  as  an  expert,  who  has  described  the  nature  of 
a  wound,  may  be  asked  whether  it  could  have  been  produced 
by  one  blow  of  a  club  with  which  the  prisoner  was  proved  to 
have  struck  the  deceased;  but  he  can  not  be  asked  if  the 
wound  might  have  not  been  caused  by  a  stone,  where  it  is  not 
proved  that  any  stone  was  used  to  strike  with,  which  is  a  mere 
probability.  People  v.  Rogers,  13  Abb.  Pr.,  N.  S.  370.  But 
an  expert  may  testify,  in  the  case  of  wounds  found  upon  the 
person  of  deceased,  found  in  a  sink,  as  to  whether  they  might 
have  been  caused  by  his  falling  into  the  sink.  Davis  v.  State, 
38  Md.  15,  43.  On  a  trial  for  murder,  the  opinions  of  a  medi- 
cal man  as  to  the  cause  of  death,  are  competent  evidence. 
Shelton  v.  State,  34  Tex.  662.  A  physician  may  be  asked  to 
give  his  opinion  as  to  the  cause  of  a  spinal  difficulty  with 
which  he  has  testified  that  a  person  was  afflicted  ;  but  in  such 
case  he  must  state  the  facts  upon  which  his  opinion  is  founded. 
Matteson  v.  New  York,  &c.  R.  R.  Co.,  62  Barb.  364.  Medical 
men,  when  called  as  scientific  witnesses,  can  not  give  their 
opinions  as  to  the  merits  of  a  cause,  but  their  opinions  mus 


OPINION    EVIDENCE.  891 

517.  2.  Another  class  of  exceptions  is  to  be  found, 
where  the  judgment  or  opinion  of  a  witness,  on  some 
question  material  to  be  considered  by  the  tribunal,  is 
formed  on  complex  facts  which  from  their  nature  it 
would  be  impossible  to  bring  before  it.  Thus,  the 
identification  by  a  witness  of  a  person  or  thing  is  nec- 
essarily an  exercise  of  his  judgment.  "  In  the  identi- 
fication of  person,"  says  Parke,  B.,  (2)  "you  compare 
in  your  mind  the  man  you  have  seen,  with  the  man 
you  see  at  the  trial.  The  same  rule  belongs  to  every 
species  of  identification."  And  on  the  same  occasion 
Alderson,  B.,  said  :  "  Generally,  where  there  is  such  a 
coincidence  in  admitted  facts,  as  makes  it  more  rea- 
sonable to  conclude  that  a  certain  subject-matter  is 
one  thing  rather  than  another,  that  coincidence  may 
be  laid  before  the  jury,  to  guide  their  judgment  in  de- 
ciding on   the  probability  of  that  fact."     Many  mis- 

tures,  that  he  had  not  given  more  at-  as  quoted  in   Beck's  Med.  Jur.  1089, 

tention    to    the    subject    of    poisons,  7th  Ed. 

before  venturing  to  give  an  opinion  in  (2)  Fryer  v.  Gathercole,  13  Jur.  542. 
a  court  of  justice.     Sir  Astley  Cooper, 

be  predicated  upon  the  facts  proved  ;  wheT  e,  however,  the  facts 
are  doubtful,  they  may  be  asked  their  opinion  upon  a  case 
hypothetically  stated.  Tingley  v.  Cowgill,  48  Mo.  291.  Ante, 
note  p.  870.  Whether  a  child  was  a  "full-time  child  "  may  be  tes- 
tified to  by  any  physician,  of  ordinary  experience,  who  attended 
at  the  birth.  Young  v.  Makepeace,  103  Mass.  50.  As  to  what  ex- 
tent of  knowledge  will  qualify  a  physician,  who  is  not  a  veterin- 
ary surgeon,  to  testify  as  an  expert  concerning  a  diseased  mule, 
see  Horton  v.  Green,  64  N.  C.  64.  As  to  experts  on  diseases 
of  animals,  see  remarks  in  Slater  v.  Wilcox,  57  Barb.  604.  As 
to  what  degree  of  knowledge  of  the  special  subject  of  insanity 
is  necessary,  see  Davis  v.  State,  35  Ind.  496  ;  Call  v.  Byr.m  . 
39  Id.  499.  As  to  opinions  and  examinations  of  experts  in 
cases  of  malpractice,  see  Dexter  v.  Hall,  15  Wall.  9  ;  Bishop 
v.  Spining,  38  Ind.  143.  It  has  been  said  that  a  physician  may 
be  competent  to  testify  as  an  expert  on  questions  of  insanity, 
although  he  has  not  made  diseases  of  the  mind  his  special 
study.     State  v.  Reddick,  7  Kans.  143. 


892      SECONDARY    RULES    OF    EVIDENCE.. 

takes,  however,  have  been  made  in  the  identi- 
fication both  of  persons  and  of  things,  (a)  So, 
the  state  of  an  unproducible  portion  of  real 
evidence  —  as,  for  instance,  the  appearance  of  a 
building,  or  of  a  public  document  which  the  law 
will  not  allow  to  be  brought  from  its  repository 
■ — may  be  explained  by  a  term  expressing  a  com 
plex  idea,  e.  g.t  that  it  looked  old,  decayed,  or  fresh, 
was  in  good  or  bad  condition,  (J?)  &c.  So  also  may 
the  emotions  or  feelings  of  a  party  whose  psychologi- 
cal condition  is  in  question — thus  a  witness  may  state 
whether,  on  a  certain  occasion,  he  looked  pleased,  ex- 
cited, confused,  agitated,  frightened,  or  the  like.  (V) 
To  this  head  also  belong  the  proof  of  handwriting, 
ex  visu  scriptionis  and  ex  scriptis  olim  visis.  (d)1  And' 
it  is  on  this  principle  that  testimony  to  character  is  re- 
ceived ;  as  where  a  witness   deposes  to  the  good  or 


(<?)  The  resemblance  between  indi- 
viduals is  often  very  close.  A  well- 
known  man  of  fashion  once  narrowly 
escaped  conviction  for  a  highway  rob- 
bery, from  his  extraordinary  resem- 
blance to  a  notorious  highwayman  of 
the  day  (Beck's  Med.  Tur.  40S,  7th 
Ed.);  and  Sir  Thomas  Davenport,  an 
eminent  barrister,  swore  positively  to 
the  persons  of  two  men,  whom  he 
charged  with  robbing  him  and  his  lady 
in  the  open  daylight.  A  clear  alibi 
was  however  proved,  and  the  real  rob- 
bers being  afterwards  taken  into  cus- 
tody, with  the  stolen  property  upon 
them,  Sir  Thomas,  on  seeing  them,  at 
once  acknowledged  that  he  had  been 
mistaken  (per  MacNally,  arguendo,  in 
K.  v.  Byrne,  2S  Ho.  St.  Tr.  819).  For 
other  cases  of  mistaken  identity  of 
persons,  see  Wills,  Circ.  Evid.  go  ct 
teq.  3rd  Ed.;   Beck's  Med.  Jurisp.  404 


et  seq,  7th  Ed.;  the  case  of  James 
Crow,  Theor.  of  Pres.  Proof,  Append. 
Case  4,  and  that  of  Male,  3'Benth.  Jud. 
Ev.  255,  and  Dicks,  Law  Ev.  in  Scotl. 
153,  note  (d),  and  154  (a).  In  Shuf- 
flebottom  v.  Allday,  Exch.  M.  1S56, 
MS.,  Alderson,  B.,  mentioned  a  case 
which  occurred  at  Liverpool  some 
years  before,  where  a  prisoner  was 
identified  by  six  or  seven  respectable 
witnesses  ;  but  their  evidence  was  en- 
countered by  that  of  the  jailer  and  all 
the  officers  of  the  prison,  who  deposed 
that  at  the  time  in  question  he  was 
there  in  their  custody.  A  good  instance 
of  mistaken  identity  of  things,  taken 
from  Burnett's  Crim.  Law  of  Scotland, 
p.  55S,  will  be  found  in  19  Ho.  St.  Tr. 
494  (note). 

(J>)  Leighton  v.  Leighton,  1  Str.  240 

(c)  Supra,  ch.  2,  sect.  3,  sub-sect.  3. 

(d)  Bk,  2,  pt.  3,  ch.  2. 


«  c 


ee  ante,  p.  874,  note  1. 


OPINION    EVIDENCE.  893 

bad  character  of  a  party  who  is  being  tried  on  a  crimi- 
nal charge,  or  states  his  conviction  that,  from  the  gen- 
eral character  of  another  witness,  he  ought  not  to  be 
believed  on  his  oath,  (e)  '  In  all  cases,  of  course,  the 
grounds  on  which  the  judgment  of  the  witness  is 
formed,  may  be  inquired  into  on  cross-examination. 

{e)  Supra,  pt.  I,  ch.  i. 

4  So  evidence  of  intention.  Evidence  of  intention  is  only 
proper  when  the  intention  itself  is  part  of  the  issue  in  con- 
troversy. Courtland  v.  Patterson,  9  Fost.  280,  and  see  Cole 
v.  Whitely,  3  G.  &  J.  197  ;  Patton  v.  Ferguson,  iS  N.  H.  528  ; 
People  v.  Williams,  8  Park.  Cr.  R.  88,  107  ;  State  v.  Duler, 
Phillips,  (N.  C.)  L.  R.  211;  but  see  1  Greenleafon  Evidence, 
§  98  ;  Lund  v.  Tinebro,  9  Cush.  376  ;  Whiteford  v.  Burkmeyer,  1 
Gill.  140  ;  Crawford  v.  Beal,  21  Md.  233.  In  the  Wharton  trial 
Judge  Miller  held  that  the  following  question  on  a  trial  for  mur- 
der was  improper  :  "  From  your  knowledge  of  Mrs.  Wharton's 
(the  accused)  general  reputation  as  to  the  qualities  of  humanity, 
kindness,  and  amiability,  as  you  have  testified  to,  would  you, 
or  would  you  not,  believe  her  capable  of  committing  the  crime 
of  murder?"  In  the  second  trial  of  Mrs.  Wharton,  for  an 
attempt  to  take  the  life,  by  poison,  of  Mr.  Van  Ness,  the  court 
(Miller,  Ch.  J.)  ruled  that  the  person  whose  life  was  alleged 
to  have  been  attempted,  could  not,  as  a  witness  for  the  prose- 
cution, swear  to  his  own  suspicions;  and,  in  another  place, 
although  a  witness  might  testify  as  to  what  that  person  had 
said  about  the  state  of  his  health  at  a  certain  time,  she  could 
not  testify  as  to  his  entertaining  fears  as  to  his  health  in  the 
future. 


8q4     SECONDARY    RULES    OF    EVIDENCE. 


CHAPTER  VII. 


SELF-REGARDING    EVIDENCE. 


SECTION  I. 


SELF-REGARDING    EVIDENCE    IN    GENERAL. 

PARAGRAPH 

Self-regarding  evidence            .         .         , 518 

General  rule       .  ...........519 

Self-serving  evidence 520 

Se'f  disserving  evidence 521 

How  supplied 521 

By  Words 521 

Writing 521 

Signs 521 

Silence 521 

Different  kinds  of 522 

1.  Division  first         .         .         .         .         .         ...         .         .  522 

1.  Judicial 522 

2.  Extra-judicial                 , 522 

2.  Division  second        .........  523 

1.  Admissions    .........  523 

2.  Confessions 523 

3.  Division  third .  524 

1.  Plenary 524 

2.  Not  plenary 524 

Admissible  as  primary  evidence  of  written  documents        .         .         .  525 

But  not  to  prove  the  execution  of  a  deed,  except  under  the  17 

and  18  Vict,  c    125 527 

To  whom  self-disserving  statements,  &c,  may  be  made            .         .  528 

State  of  mind  of  party  making  self-disserving  statement,  &c.              .  529 

Drunkenness    .......          ...  529 

Talking  in  sleep            .........  529 

Unsoundness  of  mind 529 

Self-disserving  statements  made  under  mistake           ....  530 

Of  fact 530 

Of  law 530 

By  whom  self-disserving  statements,  &c,  may  be  made           .         .  531 


SELF-REGARDING    EVIDENCE.  895 

518.  In  the  preceding  chapters,  we  have  shown  the 
general  nature  of  those  rules  by  which  evidence  is 
rejected  for  want  either  of  originality  or  of  proximity 
The  present  will  be  devoted  to  that  species  of  evi- 
dence for  or  against  a  party,  which  is  afforded  by  the 
language  or  demeanor  of  himself,  or  of  those  whom  he 
represents,  or  of  those  who  represent  him.  All  such 
evidence  we  purpose  to  designate  by  the  expression 
"  Self-regarding."  When  in  favor  of  the  party  supply- 
ing it,  the  evidence  may  be  said  to  be  "  Self-serving;" 
when  otherwise,  "  Self-disserving."     (a) 

519.  The  rule  of  law  with  respect  to  self-regarding 
evidence  is,  that  when  in  the  self-serving  form  it  is  not 
in  general  receivable ;  but  that  in  the  self-disserving 
form  it  is,  with  few  exceptions,  receivable,  and  is 
usually  considered  proof  of  a  very  satisfactory  kind. 
(5)     For,  although,  when   viewed  independently  of 

urisprudence,  it  would  be  difficult  to  maintain  that 
che  declarations,  or  what  is  equivalent  to  the  declara- 
tions of  one  man,  may  not  in  particular  cases  have 
some  probative  force  as  evidence  against  another, — 
still  our  law  rejects  them  (c)  in  obedience  to  its  great 
principle,  which  requires  judicial  evidence  to  be  proxi- 
mate ;  and  also  from  the  peculiar  temptations  to  fraud 
and  fabrication,  which  the  allowing  such  evidence 
would  so  obviously  supply.  This  is  a  branch  of  th 
general  rule,  that  a  man  shall  not  be  allowed  to  make 
evidence  for  himself,  (d)  But,  on  the  other  hand,  the 
universal  experience  of  mankind  testifies  that, — as  men 

(a)  These  three  terms  are  taken  from  ace.   Mascard.  de    Prob.  Qnsest.  7,  n. 

Benth.  Jud.  Ev.  vol.  5,  p.  204.     The  10. 

term   "  Self-regarding  "   and   its    two  (c)  2  Campb.  389,  and  supra,   bk.   I, 

species  are  also  applicable  to  the  state-  pt.  1,  §  91. 

merits  and  demeanor  of  witnesses.  {d)  3  B.  &  A.  144.     See  supra,  ch. 

(6)  Gilb.  Evid,  119,  4th  Ed.  ;  Finch,  5,  §  506. 
Law    37  ;  Trials  per  Pais,  381.     See 


Sq6    secondary  rules   of  evidence. 

consult  their  own  interest,  and  seek  their  own  advan- 
tage— whatever  they  say  or  admit  against  their  interest 
or  advantage  may,  with  tolerable  safety,  be  taken  to 
be  true  as  against  them,  at  least  until  the  contrary 
appears. 

520.  The  subject  of  self-serving  evidence  may  there- 
fore be  despatched  in  few  words,  and  indeed  has  been 
substantially  considered  under  the  title  "res  inter  alios 
acta  alteri  nocere  non  debet."  (<?)  There  are,  however, 
some  exceptions  to  the  rule  excluding  it  The  first  is, 
that  where  a  part  of  a  document  or  statement  is  used  as 
self-disserving  evidence  against  a  party,  he  has  a  right 
to  have  the  whole  of  it  laid  before  the  jury,  who  may 
then  consider,  and  attach  what  weight  they  see  fit  to  any 
self-serving  statements  it  contains.  (_/")  This  exception 
is  founded  on  the  plain  principle  of  justice  that,  by 
using  a  man's  statement  against  him  you  adopt  that 
statement,  as  evidence  at  least.  The  civilians  seem  to 
have  gone  further.  "  Observe,"  says  Pothier,  (jf)  "  that 
when  I  have  no  other  proof  than  your  confession,  I 
can  not  divide  it.  Suppose,  for  instance,  that  I  claim 
from  you  two  hundred  livres,  which  I  allege  that  you 
have  borrowed,  and  of  which  I  demand  the  payment  ; 
you  admit  the  loan,  but  add,  that  you  have  repaid  it.  I 
can  not  found  a  proof  of  the  loan  upon  your  confession, 
which  is,  at  the  same  time,  a  proof  of  payment ;  for  I  can 
only  use  it  against  you  such  as  it  is,  and  taking  it  al 
together.  Si  quis  confessionemadversam  allegat,  vel  de- 
positionem  testis,  dictam  cum  suaquantitateapprobare 
tenetur."  This  was  probably  just  enough  under  their 
judical  system  ;  but  with  us,  while  the  whole  statement 

(e)  Supra,  ch.  5.  D.  &  Ryl.  358  ;  Smith  v.  Blandy,  Ry. 

(/)   Tayl.    Ev.    §   655,   4th.    Ed.;  &  M.  257  ;  Darby  v.  Ouseley,  2  Jur.,  N. 

Peake  Ev.  16,   5th   Ed. ;    2  Ev.   Poth.  S.  497- 

156-15S  ;    Randle    v.     Blackburn,    5  {g)  1  Ev.  Poth.  §  799. 
Taunt.    245  ;    Thomson  v.   Austen,  2 


SELF-REGARDING    EVIDENCE.  897 

must  be  received,  the  credit  due  to  each  part  must  be  de- 
termined by  the  jury,  who  may  believe  the  self-serving 
and  disbelieve  the  self-disserving  portion  of  it,  or  vice 
versa.  (Ji)  Again,  a  person  on  his  trial  may,  at  least  if 
not  defended  by  counsel,  state  matters  in  his  defense 
which  are  not  already  in  evidence,  and  which  he  is  not 
in  a  condition  to  prove,  and  the  jury  may  act  on  that 
statement  if  they  deem  it  worthy  of  credit,  (z)  Care 
must  likewise  be  taken  not  to  confound  self-serving 
evidence  with  res  gestae.  The  language  of  a  party,  ac- 
companying an  act  which  is  evidence  in  itself,  may 
form  part  of  the  res  gestae,  and  be  receivable  as 
such. 

521.  We  return  therefore  to  the  more  important 
and  difficult  subject  of  self-disserving  evidence.  This 
may  be  supplied  by  words,  writing,  signs,  or  silence. 
"  Non  refert  an  quis  intentionem  suam  declaret  verbis, 
an  rebus  ipsis,  vel  factis. "(_/)  '  Words  addressed  to 
others,  and  writing,  are  no  doubt  the  most  usual 
forms ;  but  words  uttered  in  soliloquy  seem  equally 
receivable ;  (/&)  while  of  signs  it  has  justly  been  said. 
"  Acta  exteriora  indicant  interiora  secreta."  (/)  '  Thus, 
a  deaf  and  dumb  person  may  be  called  on  to  plead,  or 
to  advocate  his  cause,  through  the  medium  of  an  inter- 
preter who  can  explain  his  signs  to  the  court  and  jury. 
(m)      So  of  silence,  "  qui  tacet,  consentire   videtut " 


A)  See  Baildon  v.  Walton,  I  Exch.  (/&)  R.  v.  Simons,  6  C.  &  P.  540 

617.  (/)  8  Co.   146b  ;    Wing.    Max.    108 

(*)  See  Bk.  4,  pt.  1.  Broom's  Max.  296,  4th  Ed. 

(/)  10  Co.    144a.     See  Ford  v.  El-  (;«)  R.  v.  Jones,  1  Leach,  C.  L.  102, 

liott,  4  Exch.  78.  R.  v.  Steel,  Id.  451. 

It  matters  not  whether  a  man   declares  his  intention  by 
words,  or  acts,  or  deeds. 

2  The  secret  intentions  of  the  mind  are  manifested  by  the 
outward  actions. 
57 


8p3      SECONDARY    RULES     OF    EVIDENCE. 

(?i) ' — a  maxim  which  must  be  taken  with  considera- 
ble limitation.  A  far  more  correct  exposition  of  the 
principle  contained  in  it  is  the  following  :  "  Qui  tacet, 
non  utique  fatetur  :  sed  tamen  verum  est,  eum  non 
negare  : "  (<?)  2  and  one  of  our  old  authorities  tells  us 
with  truth,  "  Le  nient  dedire  n'est  cy  fort  come  le  con- 
fession est,"  (p)  3  which  seems  fully  recognized  in  mod- 
ern times,  (y)  The  maxim  is  also  found  guarded  in 
this  way,  "  Qui  tacet  consentire  videtur,  ubi  tractatur 
de  ejus  commodo."  (r)  i  The  principal  application  of 
this  maxim  is  in  criminal  cases,  where  a  person  charged 
with  having  committed  an  offense  makes  no  reply  ; 
the  force  and  effect  of  which  will  be  more  fully  con- 
sidered in  another  place,  (s) 

522.  As  to  the  different  kinds  of  self-disserving 
statements.  In  the  first  place  they  are  either  "  Judi- 
cial "  or  "  Extra-judicial,"  -in  judicio  or  extra  judicium, 
(/)  according  as  they  are  made  in  the  course  of  a  ju- 
dicial proceeding,  or  under  any  other  circumstances. 

523.  2.  Self-disserving  statements  in  civil  cases  are 
usually  called  "  Admissions,"  and  those  in  criminal 
cases  "  Confessions."  The  civilians  and  canonists  ex- 
press all  kinds  under  the  term  "  confessio." 

(//)  12    Hen.  VITI.    8  ;  Hob.    102  ;  162.    See  Morgan  v.  Evans,   3    CI.  & 

Jenk.  Cent.  I,  Cas.  64  ;  Cent.    2,  Cas.  F.  205  ;  Gaskill  v.    Skene,    14   Q.    B. 

30  ;   Cent.  5,  Cas.  87  ;  Sext.  Decretal.  664,  and  Boyle  v.  Wiseman,  10   Exch. 

lib.  5,  tit.  12,  de  reg.  Juris,  Reg.  43.  651. 

(o)  Dig.  lib.  50,  tit.  17,  1.  142.      See  (r)  20  Hen.  VI.  13b. 

also  Sext.    Decretal,    lib.  5,  tit.  12,  de  (s)  See  infra,  sect.  3,  sub-sect.  3. 

regulis  juris,  Reg.  44.  (()  1  Greenl.  Ev.  §  216,  7th    Ed   •,  I 

(/)  Long.  Quint.  125,  126.  Ev.  Both.  §§  797,  801. 

(q)  Hayslep    v.    Gymer,    1   A.  &    E. 

1  He  who  is  silent  is  considered  as  assenting. 

*  He  who  is  silent  does  not  thereby  confess,  but  yet  it  is 
*rue  that  he  does  not  deny. 

8  Denial  is  not  as  strong  as  confession. 

4  He  who  is  silent  is  considered  as  assenting,  when  his  own 
convenience  is  the  subject-matter. 


SELF-REGARDING    EVIDENCE.  899 

524.  3.  Self-disserving  statements  are  divisible  into 
"  Plenary  "  and  "  Not  plenary."  A  "  Plenary  "  confes- 
sion is  when  a  self-disserving  statement  is  such  as,  if 
believed,  to  be  conclusive  against  the  person  making 
it,  at  least  on  the  physical  facts  of  the  matter  to  which 
it  relates  :  as  where  a  party  accused  of  murder  says, 
"  I  murdered,"  or  "  I  killed,"  the  deceased.  In  such 
cases  the  proof  is  in  the  nature  of  direct  evidence,  and 
the  maxim  is  "  habemus  optimum  testem,  confitentem 
reum."  («)  *  A  confession  "  not  plenary  "  is,  where  the 
truth  of  the  self-desserving  statement  is  not  absolutely 
inconsistent  with  the  existence  of  a  state  of  facts  dif- 
ferent from  that  which  it  indicates  ;  but  only  gives  rise 
to  a  presumptive  inference  of  their  truth,  and  is  there- 
fore in  the  nature  of  circumstantial  evidence,  {v)  E.g., 
A.  is  found  murdered,  or  the  goods  of  B.  are  proved  to 
have  been  stolen,  and  the  accused  or  suspected  person 
says,  "  I  am  very  sorry  that  I  ever  had  anything  to  do 
with  A.,"  or  "  that  I  ever  meddled  with  the  goods  of 
B."  These  expressions  are  obviously  ambiguous  ;  for, 
although  consistent  with  an  intention  to  avow  guilt, 
they  are  equally  so  with  an  expression  of  regret,  that 
circumstances  should  have  occurred  to  cast  unjust  sus- 
picion on  the  speaker.  So  where  a  person  accused  of 
an  offense,  admits  that  he  intended  or  even  threatened 
to  commit  it,  or  that  he  fled  to  avoid  being  tried  for 
it.  (V) 

525.  Although,  as  already  stated,  self-disserving 
evidence  is  in  general  admissible  against  the  party  sup- 
plying it,  it  has  been  made  a  great  question,  whether 

(u)  Ph.  &  Am.  Ev.   419  ;    2   Hagg.  (x)  See  supra,  ch.  2,  sect.  3,  sub-sec 

Cons.  Rep.  315.  tion,  3. 

(v)  3  Benth.  Jud.  Ev.  10S. 

1  We  have  the  best  witness- -a  confessing  defendant. 


900     SECONDARY    RULES     OF    EVIDENCE. 

this  extends  to  the  proof  of  the  contents  of  written  instru  ■ 
ments  or  documents — i.  c,  whether  the  principle  that 
such  are  the  best  or  primary  evidence  of  their  own  con- 
tents, does  not  override  the  principle  under  considera- 
tion.1     Elementary  as  this  point  may  seem,  it  has  only 

1  But  the  rule  seems  to  be  settled  in  the  United  States  that 
in  regard  to  deeds  or  conveyances,  declarations  of  a  grantor 
to  impeach  his  own   deed  are   never  competent.     Steward  v. 
Thomas,  35    Mo.  202  ;  Phcenix  v.  Ingraham,  5  Johns.  (N.  Y.) 
412;  Jackson  v.   Vredenburgh,  1  Id.  159;  Varick   v.  Briggs,  6 
Paige  (N.  Y.)  323;   Eckford  v.  De  Ray,  8    Id.  89  ;  Vrooman  v. 
King,  36  N.  Y.  477  ;   Ward  v.  Saunders,  6  Ired.  (N.  C.)  L.  382  ; 
Williams  v   Clayton,  7  Id.  442  ;   Ferguson  v.  Staver,  2>2>  Pa-  St. 
411  ;  Ren  wick  v.  Ren  wick,  9  Rich.  (S.  C.)  50  ;  Cavin  v.  Smith, 
24  Mo.  221  ;  McCasland  v.  Carson,  1  Head.  (Tenn.)  117;  Bul- 
lard  v.  Billings,  2  Vt.  309;   Brackett   v.  Wait,  6   Id.  411;  Bur- 
ton v.  McKinstry,   4    Minn.    204;  Derby  v.  Gallup,  5  Id.  119; 
Nichols  v.  Hotchkiss,  2  Day  (Conn.)  121  ;  Simpkinsv.  Rogers, 
15  Hl.397;  Brashear  v.  Burton,  3    Bibb.   (Ky.)   9;    Sharp  v. 
Wycliffe,   3    Litt.  (Ky.)    10;   Christopher  v.   Corrington,   2   B. 
Mon.  (Ky.)  357;  Ring  v.   Gray,  6   Id.  368;  Merriweather  v. 
Heman,  S  Id.  162;   Gutliff  v.  Rose,  Id.  629;  Beall  v.  Barkley, 
10    Id.   261  ;  Short  v.  Tinsley,   1    Mete.    (Ky.)  397  ;    Pierce  v 
Faunce,  37  Me.   63;   Hum   v.   Soper,   6   Har.  &  J.   (Md.)  276 
Tyler  v.  Mather,  9  Gray  (Mass.)  177  ;  Gates  v.  Mowry,  15  Id 
564  ;  Ferriday  v.  Selser,  5  Miss.  (4  How.)  506  ;  Merrill' v.  Daw 
son,  1  Hempst.   563  ;  McKenzie  v.   Hunt,    1   Port.  (Ala.)   37 
Clemins  v.    Loggins,  1   Ala  622;  Price  v.    Branch    Bank,    i. 
Id.  374:  Cohn  v.  Mulford,  15  Cal.  50;  Taylor  v.  Robinson,  2 
Allen  (Mass.)  562;  Rust   v.    Mansfield,  25    111.   336;  Myers  v 
McKinsie,  26  Id.  36.     Neither  can   declarations  of  a  grantor, 
made  before  he  conveyed  the  land,  be  given  in   evidence,  to 
affect  the  title  of  his  grantee.     Payne  v.   Craft,  7  Watts  &  S 
(Pa.)  458.     Declarations  of  the  maker  of  a  deed   attacked  foi 
fraud  are  not  evidence  in  favor  of  those  claiming  under  such 
deed.     Tucker  v.  Tucker,  32   Mo.  464.     Declarations   of  the 
grantor  are  not   admissible  evidence   for  one  claiming  undei 
him.     Sasser  v.  Herring,  3  Dev.  (N.  C.)  Eq.  340.     Admissions 
of  a  grantor,  who  is  still  living,  made  while  holding  the  land, 
and  having  title  of  record  thereto,  unless  in   relation   to  the 
extent  and  character  of  his  possession,   can   not   be  admitted 
against  the  grantee  to  defeat  the  title.     Carpenter  v.  Hollister, 
*3  V"t.  55  2-     Upon  che  question  of  the  bona  fides  of  a  deed, 


SELF-REGARDING    EVIDENCE.  901 

been  settled  of  late  years,  if  indeed  it  can  be  deemed  fully 
settled  even  now ;  and  there  is  probably  not  one  question 
to  be  found  in  the  whole  law  of  England,  which  has 

alleged  to  be  in  fraud  of  a  contemplated  marriage,  what  the 
husband,  the  grantor,  said  in  favor  of  the  deed,  even  before 
the  marriage,  is  not  admissible.  Pinner  v.  Pinner,  2  Jones 
(N.  C.)  L.  398.  But  the  declarations  of  a  grantor,  subsequent 
to  the  date  o.r  ihe  conveyance,  are  admissible  in  evidence  to 
oppose  an  allegation  of  fraud  in  procuring  the  execution  of 
the  deed.  Pierce  v.  Hakes,  23  Pa.  St.  231.  The  declarations 
of  a  person  under  w  hom  a  party  derives  title,  made  before  or 
at  the  time  of  the  sa'c  are  admissible  in  evidence  by  the  other 
party,  to  show  fraud  n"\  the  sale.  Satterwhite  v.  Hicks,  Busb. 
(N.  C.)  L.  105.  In  an  action  brought  to  set  aside  a  grant  as 
fraudulent,  declarations  of  the  grantor  subsequent  to  the  grant, 
were  held,  under  the  circumstances  proved,  to  be  competent 
evidence-in-chief  to  impeach  the  grant.  Savage  v.  Murphy, 
8  Bosw.  (N.  Y.)  75.  Admissions  of  a  grantor  against  his  own 
interest,  tending  to  establish  a  sufficient  consideration  for  the 
deed  (he  being  an  original  party  to  the  record  and  identified 
in  interest  with  the  plaintiffs),  are  admissible  against  them  as 
part  of  the  res gestce.  Spaulding  v.  Hallenbeck,  39  Barb.  (N. 
Y.)  79.  In  a  suit  by  a  grantor's  heirs  against  his  grantee,  to 
recover  possession  by  reason  of  a  breach  of  a  condition  in  the 
deed,  the  grantor's  declarations,  tending  to  show  a  perform- 
ance of  the  condition,  were  held  admissible.  Id.  On  an  issue 
as  to  fraud  in  a  conveyance,  the  statement  of  the  defendant, 
made  after  the  transfer,  is  competent  as  against  himself,  but 
not  as  against  his  assignee.  Enders  v.  Richards,  ^^  Mo.  59$; 
Kieth  v.  Kerr,  17  Ind.  284;  Zimmerman  v.  Lamb,  7  Minn.  421. 
The  declarations  of  a  father,  who  made  a  deed  to  a  son,  are 
competent  evidence  that  the  deed  was  intended  as  an  advance- 
ment. Speer  v.  Speer,  T4  N.J.  Eq.  (r  McCart.)  240.  Declar- 
ations of  a  vendor  of  land,  by  parol  contract,  that  he  would  not 
make  a  deed  until  his  vendee  had  paid  a  specified  balance  of 
purchase  money,  in  the  absence  of  precise  evidence  of  the 
terms  of  the  contract,  is  evidence  for  the  vendee  of  how  much 
is  due  to  the  vendor.  Reed  v.  Reed,  12  Pa  St.  117. 
Where  the  grantor  of  land,  having  obtained  possession  of  the 
deed  surreptitiously  from  the  grantee,  re-conveyed  the  same 
to  a  third  person,  who  had  knowledge  of  the  first  convcya: 
the  declarations  of  the  second  grantee,  previous  to  the  second 
conveyance-  are  admissible  in  an  action  by  the  heir  ol  the  first 


902      SECONDARY    RULES     OF    EVIDENCE. 

caused  greater  difference  of  opinion.  After  a  long  series 
of  irreconcilable  dicta  and  rulings  at  Nisi  Prius,  (y)  the 
subject  came  before  the  Court  of  Exchequer  in  Michael- 
mas Term,  1840,  in  the  case  of  Slatterie  v.  Pooley.  (z) 
There  the  question  was,  whether  a  debt  for  which  an 
action  had  been  brought  by  one  J.  T.  against  the 
plaintiff,  was  included  in  the  schedule  to  a  certain  com- 
position deed.  The  schedule  being  inadmissible  as 
evidence  for  want  of  a  proper  stamp,  a  verbal  admission 
by  the  defendant,  that  the  debt  in  question  was  the 
same  with  that  entered  in  the  schedule,  was  rejected  by 
Gurney,  B.,  at  Nisi  Prius ;  on  the  ground  that  the 
contents  of  a  written  instrument,  which  is  itself  inad- 
missible for  want  of  a  proper  stamp,  can  not  be  proved 
by  parol  evidence  of  any  kind.  The  plaintiff  having 
been  nonsuited,  a  rule  was  obtained  for  a  new  trial 
against  which  cause  was  shown,  and  several  of  the 
previous  cases  cited.     The  court,  however, — consisting 

(y)  These  will    be    found  collected       Monthly  Law  Mag.  vol.  5,  p.  175. 
in    an    article    by  the    author    in    the  (z)  6  M.  &  W.  664. 

grantee  against  the  second.  Davis  v.  Spooner,  3  Pick.  (Mass.) 
284.  Where  a  deed  of  land,  executed  and  acknowledged  by 
the  grantor,  was  delivered  by  him  to  two  of  the  three  grantees 
therein  named,  by  whom  it  was  retained  for  some  time,  with- 
out being  recorded,  and  was  then  given  back  by  them,  without 
the  knowledge  or  consent  of  the  third  grantee,  to  the  grantor, 
by  whom  the  same  was  destroyed,  and  the  grantor  subse- 
duently  died — the  declaration  of  the  grantor,  that  he  had  made 
such  a  deed,  is  admissible  in  evidence,  after  his  death,  against 
his  heirs  or  devisees.  Hodges  v.  Hodges,  2  Cush.  (Mass.)  455. 
The  conduct  and  declarations  of  a  grantor,  before  the  convey- 
ance, respecting  an  estate  conveyed,  and  tending  to  prove  a 
fraudulent  intention  on  his  part  to  defeat  his  creditors,  are 
proper  evidence  to  be  submitted  to  a  jury,  upon  an  inquiry 
as  to  the  validity  of  such  conveyance,  by  a  creditor  who  alleges 
it  to  be  fraudulent.  Bridge  v.  Eggleston,  14  Mass.  245  ;  Mc- 
Dowe.l  v.  Goldsmith,  6  Md.  319  ;  Head  v.  Halford,  5  Rich 
(S.  C )  Eq.  128. 


SELF-REGARDING    EVIDENCE.  903 

of  Parke,  Alderson,  Gurney,  and  Rolfe,  BB., — having 
taken  time  to  consider,  unanimously  made  the  rule 
absolute,  without  hearing  counsel  in  support  of  it 
Parke,  B.,  in  delivering  his  judgment,  says,  p.  668: 
"We  who  heard  the  argument  (my  brother  Alderson, 
who  is  absent,  as  well  as  ourselves)  entertain  no  doubt 
that  the  defendant's  own  declarations  were  admissible 
in  evidence,  to  prove  the  identity  of  the  debt  sued  for 
with  that  mentioned  in  the  schedule,  although  such 
admissions  involved  the  contents  of  a  written  instrument 
not  produced;  and  I  believe  my  Lord  Abinger,  who 
was  not  present  at  the  argument,  entirely  concurs. 
The  authority  of  Lord  Tenterden  at  Nisi  Prius,  in  the 
case  of  Bloxam  v.  Elsee,  (a)  is  no  doubt  to  the  con- 
trary :  t  -tt  since  that  case,  as  well  as  before,  there  have 
been  uany  reported  decisions,  that  whatever  a  party 
say?  or  his  acts  amounting  to  admissions,  are  evidence 
agr  mst  himself,  though  such  admissions  may  involve 
w  at  must  necessarily  be  contained  in  some  deed  or 
voting,  .  .  .  and  any  one  experienced  in  the  con- 
c  uct  of  causes  at  Nisi  Prius,  must  know  how  constant 
t,  e  practice  is.  Indeed,  if  such  evidence  were  inad- 
n  ssible,  the  difficulties  thrown  in  the  way  of  almost 
e  ery  trial  would  be  nearly  insuperable.  The  reason 
why  such  parol  statements  are  admissible,  without 
notice  to  produce,  or  accounting  for  the  absence  of 
the  written  instrument  is,  that  they  are  not  open  to 
the  same  objection  which  belongs  to  parol  evidence 
from  other  sources,  where  the  wTritten  evidence  might 
have  been  produced  ;  for  such  evidence  is  excluded, 
from  the  presumption  of  its  untruth  arising  from  the 
very  nature  of  the  case,  where  better  evidence  is  with- 
held whereas  what  a  party  himself  admits  to  be  true, 
may  reasonably   be  presumed  to  be  so.     The  weight 

{a)  Ry.  &  M.  187  ;  1  C.  &  P.  558. 


904      SECONDARY    RULES    OF    EVIDENCE. 

and  value  of  such  testimony  is  quite  another  question. 
That  will  vary  according  to  the  circumstances,  and  it 
may  be  in  some  cases  quite  unsatisfactory  to  a  jury. 
But  it  is  enough  for  the  present  purpose  to  say  that 
the  evidence  is  admissible." 

526.  The  authority  of  Slatterie  v.  Pooley,  at  least 
so  far  as  relates  to  extra-judicial  statements,  has  been 
recognized  and  acted  on  in  a  great  many  cases  ;  (ti) 
but  has  been  severely  attacked  in  Ireland,  (V)  and  has 
been  questioned  in  this  country,  (d)  In  Lawless  v 
Queale,  (e)  Lord  Chief  Justice  Pennefather,  speaking 
of  that  case,  says  :  "  The  doctrine  there  laid  down  is  a 
most  dangerous  proposition  ;  by  it  a  man  might  be 
deprived  of  an  estate  of  ^10,000  per  annum,  derived 
from  his  ancestors  by  regular  family  deeds  and  con- 
veyances, by  producing  a  witness,  or  by  one  or  two 
conspirators,  who  might  be  got  to  swear  they  heard 
the  defendant  say  he  had  conveyed  away  his  interest 
therein  by  deed,  or  had  mortgaged  or  otherwise  en- 
cumbered it ;  and  thus  by  the  facility  so  given,  the 
most  open  door  would  be  given  to  fraud,  and  a  man 
might  be  stripped  of  his  estate  through  this  invitation 
to  fraud  and  dishonesty."  Now,  we  must  protest  in 
toto  against  trying  the  admissibility  of  evidence  by 
such  a  test  as  this.  The  most  respectable  and  inno- 
cent man  in  the  community  may  be  hanged  for  mur- 


(<<•)  Howard  v.  Smith,  3  Scott,  N.  R.  Car.  cS:  K.  145  ;  &c. 

574  ;  Boulter  v.  Peplow,  9  C.  B.  493  ;  (c)  Lawless   v.    Queale,   8    Ir.  Law 

Pritchard  v.    Bagshawe,   11    Id.   459  ;  Rep.  3S2. 

King  v.  Cole,  2  Exch.  628;  Boileau  v.  (d)  Tayl.    Ev.   §§    3S2  et  seq.,  4th 

Rutlin,   2  Exch.   665  ;  Ridley  v.  The  Ed.  ;  Sanders  v.  Karnell,   1   F.  &  F 

Plymouth  Grinding  Company,  2  Exch.  356. 

711;  Toll   v.  Lee,  4    LI.  230  ;  Murray  I   Lawless    v.    Queale,    8    Ir.    Law 

v.  Gregory,  5    E*                 ;    R.   v.  The  Rep.    382.     See    the    observations    of 

Inhabitants  oi   B«u.ingstoke,  J4  Q.   1'..  Crampton,  J.,  in   that  case;  and  also 

611;   R.   v.  Wcltli    2  Car.  &   K.  296;  Thunder  v.  Warren,  Id.  iSt 
1  Den.  C  C.   199  ,  Ansell    v.  Baker,  3 


SELF-REGARDING    EVIDENCE.  905 

der  on  the  unsupported  testimony  of  a  pretended 
accomplice  ;  or  sent  to  penal  servitude  for  rape,  on 
the  unsupported  oath  of  an  avowed  prostitute  ;  but  is 
this  a  reason  for  altering  the  law  with  reference  to  the 
admissibility  of  the  evidence  of  accomplices  or  pros- 
titutes, or  do  innocent  men  feel  themselves  in  danger 
from  it  ?  The  weight  of  the  species  of  proof  under 
consideration  varies  ad  infinitum.  Look  at  the  different 
forms  in  which  it  may  present  itself — plenary  confes- 
sion in  judicio  ;  non-plenary  confession  in  judicio  ; 
plenary  quasi  judicial  confession  before  a  justice  of  the 
peace ;  non-plenary  quasi  judicial  confession  before  a 
justice  of  the  peace;  plenary  extra-judicial  confession 
to  seve  dl  respectable  witnesses ;  the  like  to  one  such 
witne  s  ;  non-plenary  extra-judicial  confession  to  sev- 
eral 'espectable  witnesses ;  the  like  to  one  such  ;  ple- 
nar  extra-judicial  confession  to  several  suspected 
wj  nesses  ;  the  like  to  one  such  ;  non-plenary  extra- 
jt  dicial  confession  to  several  suspected  witnesses  ;  the 
HI  z  to  one  such  ;  and  under  the  term  "  non-plenary  " 
is  ncluded  every  possible  decree  of  casual  observa- 
tic  1,  or  even  sign,  from  which  the  existence  of 
tr.-j  principal  fact  may  be  collected.  The  shade 
between  the  probative  force  of  any  two  of 
these  degrees  is  so  slight  as  to  be  almost  imper- 
ceptible, and  yet  of  all  forms  of  evidence,  the  highest 
of  these  is  perhaps  the  most  satisfactory,  and  the  low" 
est  the  most  dangerous.  The  value  of  self-disserving 
evidence,  like  that  of  every  other  sort  of  evidence,  is 
for  the  jury  ;  its  admissibility  is  a  question  of  law — 
the  test  of  which  is,  to  see  if  the  evidence  tendered  is 
in  its  nature  original  and  proximate  ;  (_/")  and  it  will 
scarcely  be  contended,  that  self-disserving  statements 
of  all  kirds  do  not  fulfill  both  those   conditions.     It 

(/jSeebk,  i,  pt.  1,  §s  S3,  89,90. 


,)o6      SECONDARY    RULES     OF    EVIDENCE. 

may,  indeed,  be  objected  that  they  usually  come  in  a 
parol  or  verbal  shape,  and  that  parol  evidence  is  infer- 
ior to  written  ;  but  that  is  a  maxim  which  has  been 
much  misunderstood,  (g)  The  contents  of  a  document 
could  most  unquestionably  be  proved,  by  a  chain  of 
circumstantial  evidence  composed  of  acts,  every  link 
\n  which  might  be  established  by  parol  or  verbal  testi- 
mony. 

527.  But  although  a  party  might  admit  the  con- 
tents of  a  document,  he  could  not,  before  the  17  &  18 
Vict,  c.  125,  by  admitting  the  execution  of  a  deed 
(except  when  such  admission  was  made  for  the  purpose, 
of  a  cause  in  court)  dispense  with  proof  of  it  by  the 
attesting  witness.  The  rule  "omnia  pnesumuntur  rite 
esse  acta  "  was  here  reversed  ;  the  courts  holding  that 
although  a  party  admitted  the  execution  of  a  deed,  the 
attesting  witnesses  might  be  acquainted  with  circum 
stances  relative  to  its  execution,  which  were  unknown 
to  the  party  making  the  admission,  and  which  might 
have  the  effect  of  invalidating  the  deed  altogether.  (Ji) 
The  decisions  establishing  this  dogma  were  \  revious 
to  Slatterie  v.  Pooley,  and  seem  to  have  been  a  rem- 
nant of  the  old  practice  of  trying  deeds  by  the  wit- 
nesses to  ihem.  (Y)  And  the  rule  was  not  affected  by 
the  alteration  made  in  the  law  by  14  &  15  Vict.  c.  99, 
which  rendered  the  parties  to  a  suit  competent  wit- 
nesses. (/£)  But  now,  by  the  17  &  18  Vict.  c.  125,  s. 
26,  any  instrument,  to  the  validity  of  which  attestation 
is  not  repuisite,  "  may  be  proved  by  admission  01 
otherwise,  as  if  there  had  been  no  attesting  witness 
thereto."1 

(,■,-)  See  bk    2,  pt.  3,  g  223.  Sefton,  2  East,  183  ;  Barnes  v.  Trom* 

(//)  Call    v     Dunning,   4    East,    53  ;  powsky,  7  T.  R.  265. 

Abbot  v.  Plumbe.i  Dougl  216  ;  John-  (*)  See  bk.  2,  pt.  3,  §§  220-221. 

son  v.  Masn,  1    Esp.   89 ;    Cunliffe  v.  (A)  Whyman  v.  Garth,  8   Exch.  803 

1  See  ante,  note  1,  p.  900. 


SELF-REGARDING     EVIDENCE.  90; 

528.  So  far  as  its  admissibility  in  evidence  is  con* 
cerned,  it  is  in  general  immaterial  to  whom  a  self« 
disserving  statement   is   made.  (/)  '     But   if  coming 

(/)  The   old  French    lawyers  drew      party  or  to  strangers.    See  I  Ev.  Poth. 
some  nice  distinctions  as   to  the  effect      §  Sol. 
of  statements  made  to  the    opposite 

1  Of  course  the  question  of  admissibility  of  confessions, 
must  depend  generally  upon  the  circumstances  of  each  case. 
United  States  v.  Mott,  McLean,  449.  When  there  is  evidence 
from  which  a  jury  may  reasonably  infer  that  an  offense  was 
committed,  sufficient  foundation  is  laid  for  admitting  the 
voluntary  confession  of  a  prisoner;  State  v.  Saleyer,  4  Minn. 
368;  but  where  the  charge  is  not  made  out,  conversation  or 
confession  extorted  by  fear  or  hope,  can  not  be  used  ;  State 
v.  Doherty,  2  Overt.  (Tenn.)  So  ;  but  the  confession  must  be 
voluntary;  if  made  through  the  influence  of  hope  or  fear,  the 
confession  is  not  admissible.  United  States  v.  Pumphreys,  1 
Cranch  C.  Ct.  74;  United  States  v.  Hunter,  Id.  317  ;  United 
States  v.  Charles,  2  Id.  76;  United  States  v.  Pocklington, 
Id.  293;  Aixen  v.  State,  35  Ala.  399;  Aaron  v.  State,  39  Id. 
75;  State  v.  Muhland,  16  La.  Ann.  376;  State  v.  Kirby,  1 
Strobh,  155;  People  v.  Fowler,  18  How.  (N.  Y.)  Pr.  493; 
People  v.  Thorns,  3  Park.  Cr.  R.  355  ;  People  v.  Wentz,  37 
N.  H.  303;  Miller  v.  State,  40  Ala.  54;  Rutterford  v.  Com- 
monwealth, 2  Mete.  (Ky.)  3S7  ;  State  v.  Nelson,  3  La.  Ann. 
497;  State  v.  Grant,  21  Me.  171  ;  Commonwealth  v.  Taylor,  5 
Cush.  (Mass.)  605;  Jordan  v.  State,  32  Miss.  382;  Spears  v. 
Ohio,  2  Ohio  St.  583  ;  and  see  United  States  v.  Charles,  2 
Cranch  C.  Ct.  76;  United  States  v.  Kurtz,  4  Id.  682.  A  con- 
fession of  a  prisoner,  taken  on  oath,  can  not  be  used  against 
him.  United  States  v.  Duffy,  1  Cranch  C.  Ct.  164;  United 
States  v.  Bascadore,  2  Id.  30.  The  rule,  excluding  statements, 
made  under  oath  by  a  person  charged  with  crime,  is  founded 
upon  the  unreliable  character  of  such  statements;  and  there- 
fore, where  a  man,  having  been  arrested  by  a  constable,  without 
warrant,  upon  suspicion  of  having  committed  murder,  was 
examined  as  a  witness  at  the  coroner's  inquest,  statements 
made  by  him  are  not  admissible  against  him  on  his  trial 
for  the  crime  itself.  People  v.  McMahon,  15  N.  Y.  384. 
Confessions  of  a  prisoner  charged  with  murder  are  ad- 
missible in  evidence,  though  made  to  a  bailiff  who  told  him 
that  truth  was  the  best  policy  ;  that,  if  he  did  the  act,  it  was  the 


9o8      SECONDARY    RULES    OF    EVIDENCE. 

under  the  head  of  what  the  law  recognizes  as  confiden- 
tial communication,  it  will  not  be  received  in  evidence; 
(m)  neither  will  it,  if  embodied   in  a  communication 

ijii)  See  infra,  ch.  8. 

best  to  confess  it ;  but  if  he  did  not,  there  was  no  wish  that  he 
should  say  so.  Aaron  v.  State,  37  Ala.  106  ;  Ala.  Sel.  Cas. 
12.  S.  P.  Hawins  v.  State,  7  Mo.  190.  Confessions  of  a 
prisoner  may  be  admitted  in  evidence  as  voluntary,  although 
made  >  er  who  had  him  in  custody,  and  who  told  him 

that  if  he  knew  anything  about  the  circumstances  it  would 
be  best  to  tell  the  truth  about  it,  and  although  another  officer 
had  falsely  told  him,  for  the  purpose  of  forcing  a  confession, 
that  a  supposed  accomplice  had  been  arrested  and  shot. 
King  v.  State,  40  Ala.  314.  Where  a  person  was  on  trial  for 
larceny,  and  confessed  his  guilt,  but  there  was  nothing  in  his 
confession  which  led  to  the  discovery  of  the  stolen  property, 
or  any  other  facts  or  circumstances  by  which  the  truth  of  such 
confession  was  established,  such  confession  is  inadmissible 
as  evidence  against  him  when  on  trial  for  the  crime  so  con- 
fessed. People  v.  Ah  How,  34  Cal.  218.  Nor  will  a  confes- 
sion be  rejected  because  made  in  answer  to  a  question  which 
assumed  ins  guilt.  So  where  a  committing  officer  asked  a 
person  charged  with  murder  "  whether  if  it  was  to  do  over 
again  he  would  it?  "  the  latter  answered,  "Yes,  sir-ree,  Bob," 
this  answer,  with  evidence  as  to  his  manner  in  making  it, 
was  held  admissible  in  evidence.  Carrol  v.  State,  23  Ala.  28. 
But  evidence  of  confession,  in  a  capital  case,  will  always  be 
cautiously  received.     State  v.  Fields,  Peck  (Tenn.)  140. 

Nor  will  confessions  of  the  accused  be  excluded,  because 
the  facts  confessed  have  been  already  proved.  Austin  v.  State, 
14  Ark.  556.  A  confession  made  by  a  prisoner,  voluntarily 
and  freely,  without  promise  or  threat,  to  an  officer  having  him 
in  legal  custody,  was  held  competent  evidence  in  Common- 
wealth v.  Mosler,  2  Pa.  St.  264;  State  v.  Simon,  15  La.  An 
568  ;  Commonwealth  v.  McGown,  2  Pars.  (Pa.)  Sel.  Cas.  341. 
But  see  Dick  v.  State,  30  Miss.  593.  Evidence  of  what  a  pris- 
oner said  to  a  witness  in  urging  the  witness  to  use  his  in- 
fluence that  he  might  be  permitted  to  testify  against  his  asso- 
ciates, is  admissible  against  the  prisoner.  State  v.  Thomson, 
Kirby  (Conn.)  345.  And  where  an  accomplice  receives  a  stipu- 
lation from  the  -public  prosecutor  that  lie  will  not  be  prosecuted 
it  he  tu  -  evidence,  and,  under  such   stipulation,  makes 


SELF-REGARDING    EVIDENCE.  90c, 

made  "  without  prejudice,"  the  object  of  such  being  to 
buy  peace,  and  settle  disputes  by  compromise  instead 
of  by  legal  proceedings.  \n)     It  has  indeed  been  held 

(n)  Cory  v.  Bretton,  4  C.  &  P.  462  ;       dock  v.  Forrester,  3  M.  &  Gr.  0,03. 
Healey  v.  Thatcher,  S    Id.  3SS  ;  Pad- 

a  confession,  if  upon  the  trial  he  refuse  to  testify,  such  con- 
fession may  be  used  in  evidence  against  his  accomplices  at  the 
trial.     Commonwealth  v.  Knapp,  10  Pick.  477,  ante,  note  1,  p. 
772.     It  is  the  duty  of  committing  magistrates,  on  preliminary 
investigations,  to  advise   the  prisoner  as  to  his    rights,  as  to 
refusing  to  answer  questions  put  to  him  ;  but  if  he  then  volun- 
teers a  confession,  it  can   be  used  against  him   on   his  trial. 
State  v.  Lamb,  28  Mo.  218  ;  but  see  Commonwealth  v.  Harman, 
4  Pa.  St.  269,  to  the  contrary.     The  testimony  of  a   man,  on 
trial  for  murder,  given  on  a  coroner's  inquest,   may  be  used 
against  him  on  his   trial.     People  v.  Thayers,  1  Park.  (N.  Y.) 
Cr.  595  ;   People  v.  McMahon,  2  Id.  663;  Hendrickson  v.  Peo- 
ple, 10  N.  Y.  (2  Seld.)  13;  Williams  v.  Commonwealth,  29  Pa. 
St.  102.  It  is  the  duty  of  an  examining  magistrate  before  whom 
a   prisoner  charged   with  felony  is  brought,  to  reduce  the  ex- 
amination  to  writing  ;  but   if  he  did  not,  and  it  appears  that 
he  did  not,  evidence  may  be  given   ot   such  prisoner's  confes- 
sions at  the  time.     State  v.  Parish,  Busb.   (N.  C.)  L.    239.     S. 
P.  State  v.  Irwin,  1  Hayw.  (N.  C.)  112.    The  public  prosecutor 
may  offer  parol  evidence,  on  trial  of  a  prisoner,  of  what  the 
latter  swore  to  in  making  a  complaint  of  a  third  party  before 
a  magistrate.     Such  complaint  having  been  made  by  advice  of 
the  prisoner's  father,  and  in  hope  of  being  state's  evidence,  is 
not  to   be  excluded  as  a  confession  made  under  inducements. 
People  v.  Burns,  2  Park.  (N.  Y.)   Cr.  34.     What  a  party   says 
when  examined  as  a  witness   in  a  legal  proceeding,  may  be 
used  in  evidence  against  him  ;   Hendrickson  v.  People,  1  Park. 
(N.  Y.)  Cr.  406  ;  State  v.  Broughton,  7  Ired.  (N.  C.)  L.  96  ;  and 
having  been  warned  of  his  rights  by  the  magistrate,  any  con- 
fessions made  by  him,  if  reduced  to  writing  by  the  magistrate, 
may   be  real   in   evidence   against   him   on    his   trial;    subject, 
however,    to    be   impeached,    as   other  testimony.      AM'red  v. 
State,  2  Swan.  (Tenn.)  581.      But  facts  obtained  by  means  ot 
confessions  induced   by   appliances   of  hope   or  fear,   may  be 
given  in  evidence.    Gates  v.  People,  14  111.  433;  United  State 
v.  Richard,  2  Cranch  C.  Ct.  439;  People  v.   Hoy  Ten,  34  Cal 
176;  Jane  v.   Commonwealth,  2  Mete.  (Ky.)  30;  Frederick  v. 
State,  3  W.  Va.  695.     It  is  the  province  of  the  court  to  deter- 


910     SECONDARY    RULES     OF    EVIDENCE. 

that,  in  order  to  render  an  account  stated  binding-  on 
a  party,  the  admission  of  liability  must  be  made  to  the 
opposite  party  or  his  agent ;  (o)  but  this  only  refers 
to  the  effect  of  the  admission,  not  to  its  admissibility. 
A  distinction  was  formerly  sought  to  be  drawn, 
where  a  confession  was  made  by  a  prisoner,  in  con- 
sequence of  an  inducement  to  confess,  held  out  by  a 
party  who  had  no  authority  over  him  or  the 
charge  against  him.  Although  such  an  inducement 
does  not  exclude  confessions  made  to  others. 
(/)  it  was  doubted  whether  it  would  not  ex- 
clude confessions  made  to  the  person  holding  out  the 
inducement:  but  this  distinction  has  been  over- 
ruled, (y)  l 

(<?)  Breckon   v.    Smith,    I    A.  &    E.  per  Parke,  B. 

4S3,    per    Littledale,    J.  ;    Hughes    v,  (/>)     R.  v.  Dunn,  4  C.  &  P.  543  ;  R. 

Shorpe,   5    M.   &  W.    667,  per  Parke,  v.  Spencer,  7  Id.  776. 

B.  ;  Bates   v.    Townley,   2   Exch.    156,  (q)  R.  v.  Taylor,  S  C.  &  P.  733. 

mine  whether  the  confession  of  a  prisoner  is  voluntary  or  not. 
Simon  v.  State,  5  Fla.  2S5  ;  Whaley  v.  State,  11  Ga.  123  ;  State 
v.  Ostrander,  iS  Iowa,  435  ;  Hudson  v.  Commonwealth,  2 
Duv.  (Ky.)  53  c;  Cain  v.  State,  18  Tex.  3S7.  And  see  as  to 
what  degree  of  influence  will  vitiate  a  confession,  State  v. 
Harman,  3  Harr.  (Del.)  567.  Where  the  original  confessions 
were  made  under  undue  or  improper  influence,  his  subsequent 
confessions  will  be  inadmissible  against  him,  unless  it  is 
shown  that  such  influence  has  ceased  to  operate.  Love  v. 
State,  22  Ark.  336  ;  Bob  v.  State,  31  Ala.  560;  joe  v.  State,  38 
Ala.  422  ;  People  v.  Jim  Ti,  32  Cal.  60  ;  State  v.  Gregory,  5 
Jones  (X.  C.)  L.  315  ;  Moor's  Case,  2  Leigh  (Va.)  701.  And 
where  the  confession  is  offered  in  evidence  in  connection  with 
some  inducement  held  out  to  him  to  make  it,  if  the  confession 
is  not  so  connected  with  the  inducement  as  to  be  a  conse- 
quence of  it,  it  is  to  be  considered  as  voluntary.  State  v.  Pot- 
ter, 18  Conn.  166.  If  a  prisoner  makes  a  confession,  believing 
himself  to  be  speaking  under  oath,  his  statements  arc  inad- 
missible in  evidence.  Schoeffer  v.  State,  3  Wis.  828;  United 
States  v.  Williams,  1  Cliff.  5. 

1  See  cases  cited  in  the  preceding  note.      The  confession  of 
one  under  arrest  for  a  crime  that  he  did  commit,  is  inadmis- 


SELF-REGARDING    EVIDENCE.  9n 

529.  Self-disserving  statements,  &c.,  made  by  a 
party  when  his  mind  is  not  in  its  natural  state,  ought 
in  general,  to  be  received  as  evidence,  and  his  state  of 

sible  when  it  appears  that  the  officer  having  him  under  arrest, 
said  to  him,  "  If  you  are  guilty,  you  had  better  own  it."  State 
v.  York,  37  N.  H.  175.  But  it  was  held  in  Fouts  v.  State,  8 
Ohio  St.  98,  that  the  confession  of  one  charged  with  murder 
is  not  rendered  incompetent  by  the  circumstance  that  the  wit- 
ness told  him  that  "if  he  was  guilty,  it  could  not  put  him  in 
an)-  worse  condition,  and  he  had  better  tell  the  truth  at  all 
times."  The  rule,  however,  is  variable  by  the  circumstances. 
So  where  an  officer,  who  had  a  prisoner  in  charge,  told  him 
he  had  better  tell  him  all  about  the  matter,  and  if  he  would, 
he  would  not  appear  against  him,  and  that  the  prisoner  had 
better  turn  state's  evidence,  whereupon  the  prisoner  made  a 
full  confession  to  the  officer — held,  that  the  confession  so  ob- 
tained could  not  be  given  in  evidence  against  the  prisoner,  and 
that  the  proper  time  of  objection  was  before  the  officer  had 
given  his  testimony,  and  not  during  the  instruction  of  the 
jury.  Couley  v.  State,  12  Mo.  462.  Where  one  of  the  com- 
pany engaged  in  the  apprehension  of  the  prisoner,  in  the  pres- 
ence of  the  officer,  and  the  prosecutor  held  out  promises  of 
benefit  to  him,  under  the  influence  of  which  he  made  a  con- 
fession— held,  that  such  confession  was  not  admissible  in  evi- 
dence. Morehead  v.  State,  9  Humph.  (Tenn.)  635.  A  person 
committed  on  a  charge  of  larceny,  by  a  justice,  was  sent,  in 
charge  of  a  special  constable  and  the  prosecutor,  to  jail,  and 
on  the  way,  the  constable  said  to  him,  "  You  had  as  well  tell 
all  about  it."  They  then  rode  on  about  a  mile,  after  this  re- 
mark, without  any  other  remark  being  addressed  to  the  pris- 
oner, after  which  time  he  voluntarily  said  to  the  prosecutor, 
"  I  will  tell  you  all  about  it ;  "  and  proceeded  to  tell  how  and 
by  whom  the  breaking  and  larceny  was  committed.  Held, 
that  the  constable  was  one  in  authority  over  him,  and  the 
statement  was  not  admissible  in  evidence.  Vaughn  v.  Com- 
monwealth, 17  Gratt.  (Va.)  576.  A  prisoner  charged  with 
homicide  was  taken  before  a  committing  magistrate,  and  there 
sworn,  and  told,  "  If  you  do  not  tell  the  truth,  I  will  commit 
you."  Held,  that  a  confession  thus  exacted  was  inadmissible  on 
the  trial,  as  evidence  against  him.  Commonwealth  v.  Harman, 
4  Pa.  St.  269.  And  where  a  previous  confession  is  unduly  ob- 
tained, any  subsequent  confession  given  on  its  basis  is  inadmis- 


9r2     SECONDARY    RULES     OF    EVIDENCE. 

mind  should  be  taken  into  consideration  by  the  jury 
as  an  infirmative  circumstance,  (r)  Thus  a  confession 
made  by  a   prisoner  when  drunk  has  been  received ; 

{r)     "Circa    ejusmodi    instrumenta      vinum,  somnium.dementiam  emissse ;" 
firmandavel  destruenda,  multumhabet      Quint.  Inst.  Orat.  lib.  5,  c.  7. 
operis  oratio,    si   quae    sint  voces  per 

sible.    Commonwealth  v.  Harman,  4  Pa.  St.  269.     Where  con- 
fession was  offered  to  be  proved,  the  court  permitted  the  evi- 
dence thus  offered  to  be  interrupted  for  the  purpose  of  showing 
that  a  previous  confession,  by  which  it  was  induced,  was  unduly- 
obtained;  Id. ;  and  it  has  been  held  that  the  presumption  is,  if 
one  confession  be  obtained  by  influence,  that  all  subsequent 
confessions  flow  from  the  same  influence,  and  this  presumption 
is  to  be  overcome  before  the  confession  can  be  given  in  evidence. 
State   v.  Guild,  10   N.  J.  L.  (5    Hals.)  161,;  Peter  v.  State,  12 
Miss.  (4   Smed.  &   M.)  31;  State  v.   Roberts,  1   Dev.  (N.   C.) 
L.  259.     But  a  confession  made  under  influence  of  a  promise 
of  some  collateral  benefit,  no  hope  or  fear  being  held  out  in 
respect  to  a  criminal  charge  under  which  the  person  was  lying 
at  the  time,  it  has  been  held,  will  not  exclude  the  confession. 
State  v.  Wentworth,  37   N.  H.169.     But  see  Commonwealth 
v.  Tuckerman,  10  Gray  (Mass.)  173.    An  officer  with  a  warrant 
against  a  man  for  stealing  a  cow,  after  searching  his  house, 
said  to  him,  "Where  did  you  get  that  beef?     We've  got  you 
this  time.     We    have  traced  it  round   until  we    are  satisfied 
you've  got  the  cow  "  (referring  to  a  different  cow) ;  and  carried 
him  to  jail.     Held,  that  this  did  not   render  incompetent  con- 
fessions afterwards  made  to  the  officer  at  the  jail,  of  having 
stolen  the  cow  mentioned  in  the  indictment.     Commonwealth 
v.  Whittmore,  n   Gray  (Mass.)  201.     Notice  to  one  charged 
with  larceny,  by  his  employer,  that  he  would  be  discharged, 
unless  he  settled  for  the  stolen  property  with  the  owner,  but 
that    if  he  would  settle  he  should   be  kept  at  work,  and  a 
promise  by  the  employer  to  say  nothing  about  it  to  hurt  him, 
if  he  would  settle,  do   not    render   confessions   subsequently 
made,    in    the    same    conversation,   incompetent.     Common- 
wealth v.  Howe,   2  Allen  (Mass.)    153.     Where  the  prisoners 
were   witnesses  before  the  coroner's  jury,  some  of  the  jury 
told  them  that  their  stories  were  contradictory,  and  that  they 
had  better  confess,  and  sent  a  person  to  advise  them  to  con- 
fess; and  the   next  day  they  did  confess  to  another,  who  was 


SELF-REGARDING    EVIDENCE.  913 

(s) '  and  although  contracts  entered  into  by  a  party 
in  a  state  of  total  intoxication  are  void,  it  is  otherwise 
where  the  intoxication  is  only  partial,  and  not  sufficient 

(s)  R.  v.  Spilsbury,  7  C.  &  P.  187. 

not  present  when  the  above  advice  was  given  ;  the  confession 
was  admitted.  Lynes  v.  State,  36  Miss.  617.  The  mere  fact 
that  the  defendant  in  a  criminal  case  was  urged  to  state  and  to 
state  quickly,  where  he  was  at  a  particular  time,  does  not  render 
his  statement  inadmissible  as  a  confession.  State  v.  Howard, 
17  N.  H.  171.  A  statement  by  a  jailor,  after  the  arrest  of  a 
prisoner,  "  that  if  the  commonwealth  should  use  any  of  them 
as  witnesses,  he  supposed  it  would  prefer  her  to  either  of  the 
others,"  who  were  arrested  and  charged  with  the  same 
offense,  will  not  exclude  a  voluntary  confession  made  by 
her,  on  the  same  day,  to  a  magistrate,  after  the  magistrate 
had  told  her  such  confession  might  be  used  as  evidence 
against  her.  Fife  v.  Commonwealth,  29  Pa.  St.  429.  On  an 
indictment  for  murder,  it  appeared  that  when  the  prisoner 
was  first  arrested,  one  of  the  two  special  constables  who  had 
him  in  charge,  said  to  him  :  "  Come,  Jack,  you  might  as 
well  out  with  it ;"  that  the  magistrate  interposed  and  warned 
him  not  to  confess;  and  that  some  hours  afterwards  the 
prisoner  made  confessions  to  B.,  who  was  in  no  position  ot 
authority  over  him,  but  with  whom,  and  in  his  buggy,  as  a 
convenient  mode  of  transportation,  he  was  riding:  to  jail,  the 
two  constables  being  near,  but  not  within  hearing, — held,  that 
the  confessions  to  B.  were  admissible.  State  v.  Vaigneur,  5 
Rich.  (S.  C.)  391.  Where  the  mind  has  been  placed  under 
restraints  by  hope  or  fear,  for  the  purpose  of  forcing  a  con- 
fession, it  must  clearly  appear  that,  prior  to  the  confession,  it 
had  become  again  totally  free,  else  the  confession  will   not  be 

1  But  see  Commonwealth  v.  Howe,  9  Gray  (Mass.)  no, 
where  it  was  held  that  confessions  made  by  one  so  intoxicated 
as  not  to  understand  them,  are  no  evidence  against  him.  It 
was  ruled  in  that  case  that  the  question  whether  a  party 
making  confessions  was  too  intoxicated  to  understand  them, 
was  a  question  for  the  jury.  But  see  Eskridge  v.  State,  25 
Ala.  30,  which  holds  that  the  fact  that  a  defendant  was  intoxi- 
cated, that  he  was  excited  and  scattering  in  his  conversation, 
and  that  no  one  who  heard  him  could  repeat  what  he  said, 
docs  not  render  his  declarations  of  guilt  inadmissible. 
58 


gi4      SECONDARY    RULES     OF    EVIDENCE. 

to  prevent  his  being  aware  of  what  he  is  doing.  (J) 
So,  what  a  person  has  been  heard  to  say  while  talking 
in    his  sleep,  seems  not  to    be  legal  evidence  against 

(/)  Gore  v.  Gibson,  13  M.&  W.  623  ;      See   also    Mascard.  de    Prob.  Cori,'L 
q  Jur.  140  and  the  note  there,  p.  142.      580. 

admissible.  McGlothlin  v.  State,  2  Coldw.  (Tenn.)  223.  A 
person  who  lives  in  the  jailer's  family  where  a  prisoner  is 
confined,  and  who  sometimes  has  the  keys  of  the  jail,  and 
when  the  jailer  is  absent  has  control  of  the  jail,  but  who  is  not 
a  sworn  officer  of  any  kind,  is  not  a  "  person  in  authority  " 
whose  persuasions  or  threats  addressed  to  the  prisoner  will 
exclude  his  confession.  Shiffit's  case,  14  Gratt.  (Va.)  652. 
Where  a  confession  is  obtained  by  a  promise  to  put  an  end  to 
a  prosecution,  such  confession  is  inadmissible  as  evidence. 
Boyd  v.  State,  2  Humph.  (Tenn.)  39.  Torture,  to  extort  con- 
fession, is  indictable  at  common  law.  State  v.  Hobbs,  2  Tyler, 
(Vt.)  30S.  A  prisoner's  confession,  not  made,  to  one  in  author- 
ity, nor  in  consequence  of  inducements  held  out  by  any  one 
in  authority,  is  inadmissible  in  evidence,  although  a  conver- 
sion had  previously  been  held  by  two  private  persons  with 
the  prisoner,  in  the  presence  of  the  jailer  (conceding  him  to 
be  one  in  authority),  in  which  conversation  the  effect  of  a  con- 
fession was  discussed.  State  v.  Kirby,  1  Strobh.  (S.  C.)  378. 
Where  a  prisoner,  in  speaking  of  the  testimony  of  a  witness, 
who  had  testified  against  him,  said,  "  that  what  C.  said  was 
true  as  far  as  it  went,  but  that  he  did  not  say  all,  or  enough." 
Such  answer  is  not  admissible  as  a  confession  of  the  pris- 
oner, and  lays  no  foundation  for  proving  what  C.  did  swear 
to.  Finn  v.  Commonwealth,  5  Rand.  (Va.)  701.  The 
confessions  of  a  prisoner,  made  by  him  in  the  presence  of  a 
deputy  sheriff,  who  had  no  control  over  the  jail  where  he  was 
confined,  to  a  friend,  who  advised  him  to  tell  the  truth,  were 
held  admissible.  State  v.  Gossett,  9  Rich.  (S.  C.)  428.  Where 
confessions  were  extorted  from  a  prisoner,  but  afterwards  not 
being  actuated  by  the  influence  that  had  elicited  the  former 
confessions,  he  made  other  confessions  of  his  guilt, — Held, 
that  these'  latter  confessions  were  admissible  against  him. 
State  v.  Fisher,  6  Jones  (N.  C.)  L.  478  ;  State  v.  Hash,  12  La. 
Ana  895  ;  Senior  v.  State,  36  Miss.  636  ;  State  v.  Carr,  37  Vt 
191.  Confessions  appearing  to  have  been  voluntary,  made  in 
jail,  in  presence  of  the  jailer  to  the  prosecutor,  are  admissi- 
ble in  evidence  on  a  trial  for  stealing.     State  v.  Cook,  15  Rich. 


SELF-REGARDING    EVIDENCE.  915 

him,  (11)  however  valuable  it  may  be  as  indicatire 
evidence  ;  (v)  for  here  the  suspension  of  the  faculty  c' 
judgment    may  fairly    be    presumed    complete,    (w) 

(«)  This  point  arose  in  the  case  of  Indicioque  sui  facti  persaspe  fuere.' 

B.V.Elizabeth  Sippets,   Kent  Summ.  Lucretius,   lib.   4,   vy.  ioia 

Ass.   1839,   where   Tindal,   C.  J.,   was  -13.     See    also    lib.    5,    v. 

inclined  to  think  the  evidence  not  re-  H57- 

ceivable.     Ex  relatione.     See  also  per  «<  There  are  a  kind  of  men  so  loose  of 

Alderson,  B.,  in  Gore  v.  Gibson,  T3  M.  soul, 

&  W.  623,  627  ;  9  Jur.  140,  142.  Xhat  m  tiie;r  s]eeps  w;n  mutter  their 

(»)  Bk.  1,  pt.  1,  §  93.  affairs. 

(w)  Such  a  phenomenon   may  often  ...... 

be  of  the  utmost   importance  as  indi-  .          .          .         Nay,  this  was  but 

cative  evidence.  his  dream. 

"  Multi   de  magnis  per  somnum  rebu'  But  this    denoted    a    foregone  t.on- 

loquuntur  •  elusion. 

(S.  C.)  29.  In  a  prosecution  for  bigamy,  admissions  ol  the 
prior  marriage  by  the  defendant  are  competent  in  evidence, 
although  made  before  the  second  marriage.  Stanglein  v. 
State,  17  Ohio  St.  453.  S.  P.,  Wolverton  v.  State,  16  Ohio, 
173.  The  confessions  of  a  prisoner  arrested  for  larceny  may 
be  eiven  in  evidence,  though  made  after  the  owner  of  the 
goods  had  promised  not  to  prosecute  him.  Ward  v.  People, 
3  Hill  (N.  Y.)  395.  If  any  inducement  whatever  of  hope  or 
fear  be  held  out  to  a  prisoner  to  make  a  confession,  or  his 
confession  is  brought  about  by  threats  or  physical  pain,  his 
admissions  thus  made  are  not  evidence  against  him.  People 
v.  Smith,  15  Cal.  40S  ;  State  v.  Boitick,  4  Harr.  (Del.)  563  ; 
Stephen  v.  State,  11  Ga.  225;  Miller  v.  People,  39  111.  457; 
Smith  v.   State,  10  Id.   106;  Commonwealth   v.   Chabbock,   1 


1  So  words  uttered  in  sleep  by  a  defendant  in  a  criminal 
case,  are  not  admissible  in  evidence  against  him.  People  v. 
Robinson,  19  Cal.  70.  The  confessions  of  an  infant  under  12 
years  of  age  are  inadmissible  without  strong  proof  that  he  is 
capax  doli.  State  v.  Aaron,  4  N.  J.  L.  231.  A  confession 
made  by  a  prisoner  of  feeble  mind  charged  with  murder, 
whether  voluntary  or  made  in  the  presence  of  a  tumultuous 
mob  which  was  threatening  to  hang  him,  is  not  convincing 
proof  of  his  guilt;  but  it  is  for  the  jury  to  consider  whether 
upon  the  facts  of  the  case,  and  the  other  testimony,  they 
believe  it  to  be  true.  Butler  v.  Commonwealth,  2  Duv.  (Ky.) 
435- 


9i 6     SECONDARY    RULES     OF    EVIDENCE. 


The  acts  of  persons  of  unsound  mind  also  are  not  in 
general  binding;  but  this  is  subject  to  some  excep- 
tions, which  will  be  found  collected  in  Ihe  case  of 
Molton  v.  Camroux.  (x) 


Tis  a  shrewd  doubt,  tho'  it  be  but 
a  dream." 

Othello,  Act  3,  Sc.  3. 

The  following  excellent  instance  is 
taken  from  Mr.  Arbuthnot's  Reports 
of  Criminal  Cases  in  the  Court  of 
Foujdaree  Udalut  of  Madras,  p.  6i. 
Five  prisoners — named  respectively 
Dasan,  Nayakan,  Nachan,  Venka- 
tachalam,  Tandavaragan  and  Chokan 
— were  tried  in  September,  1834,  for 
the  willful  murder  of  one  Perumal 
Naik.  The  deceased  having  been 
found  murdered  and  much  mutilated, 
.the  head  lying  on  an  ant-hill  away 
from  the  rest  of  the  body,  suspicion 
fell  on  one  Venkatasami,  with  whom 
he  was  on  bad  terms.  Venkatasami's 
answers  when  questioned  on  the 
subject  not  being  satisfactory,  he  was 
kept  under  surveillance  in  the  house 
of  a  neighbor,  and  in  the  course  of 
the  following  night  was  heard  to  talk 


in  his  sleep,  allowing  the  following 
expressions  to  escape  him  :  "  Dasan 
catch  hold  of  the  hands.  Nachan,  cut 
off  the  head.  Tandavarayan,  Chokan, 
and  Venkatachalam,  catch  hold  of  his 
leg — come,  we  may  go  home  after  we 
have  deposited  the  head  on  the  top  of 
an  ant-hill."  These  words  having 
been  next  morning  reported  to  the 
authorities,  Venkatasami  was  taken 
into  custody  and  taxed  with  the  mur- 
der, which  he  at  once  confessed, 
criminating  the  prisoners,  whose  names 
had  been  mentioned  by  him  in  his 
sleep,  and  who,  on  being  apprehended, 
likewise  confessed  their  guilt.  Venka- 
tasami and  Nachan  died  before  trial, 
but  the  other  four  were  convicted, 
chiefly  on  their  own  confession,  and 
left  for  execution. 

(x)  2  Exch.  487  ;  affirmed  on  error, 
4  Id.  17. 


Mass.  144;  McGlothlin  v.  State,  2  Coldw.  223  ;  Hector  v.  State, 
2  Mo.  165  ;  State  v.  Guild,  10  N.  J.  L.  (5  Hals.)  163  ;  Wiley  v. 
State,  3  Coldw.  (Tenn.)  362  ;  State  v.  Phelps,  n  Vt.  116;  State 
v.  Walker,  34  Id.  296.  Confession  made  under  duress,  can  not 
be  considered  by  the  jury,  if  the  only  part  of  such  confession, 
confirmed  by  other  evidence,  relates  to  a  similar  offense  on 
another  occasion,  for  which  he  is  not  on  trial.  Warren  v. 
State,  29  Tex.  369.  After  it  is  known  that  any  influence  of 
hope  or  fear  existed  to  induce  a  confession,  explicit  warning 
should  be  given  the  prisoner  of  the  consequences  of  a  con- 
fession ,  and  it  should  also  be  clear  that  he  thoroughly  under- 
stands such  warning,  before  his  confessions  are  admissible. 
Van  Buren  v.  State,  24  Miss.  512.  Evidence  is  admissible,  ot 
facts  ascertained  by  means  of  confessions  of  persons  charged 
with  crimes,  made  under  the  influence  of  threats  or  promises. 
Duffy  v.  People,  26  N.  Y.  588,  People  v.  Ah  Ki,  20  Cal.  177  ; 
Sarah  v.  State,  28  Ga.  576  ;  State  v.  Cowan,  7   Ired.  (N.  C.)  L 


SELF-REGARDING    EVIDENCE.  917 

530.  A  party  is  not  in  general  prejudiced  by  self- 
disserving  statements  made  under  a  mistake  of  fact. 
"  Ignorantia  facti  excusat."  (j/)  "  Non  videntur,  qui 
errant  consentire,"  (z)  ]  and  "  Non  fatetur  qui  errat,"  (a)  * 
said  the  civilians.  So,  money  paid  under  a  forgetful- 
ness  of  facts,  which  were  once  within  the  knowledge  of 
the  party  paying,  may  be  recovered  back,  (b)  But  it 
is  very  different  when  the  confession  is  made  under  a 
mistake  of  law.  Here  the  civilians  say,  "  Non  fatetur 
qui  errat,  nisi  jus  ignoravit."  (c)  Neither  is  a  party  to 
be  prejudiced  by  a  confessio  juris,  (d)  although  this  must 
be  understood  with  reference  to  a  confession  of  law 
not  involved  with  facts  ;  for  the  confession  of  a  matter 
compounded  of  law  and  fact  is  receivable.  Every 
prisoner  or  defendant  who  pleads  guilty  in  a  criminal 
case,  admits  by  his  plea  both  the  acts  with  which  he  is 
charged,  and  the  applicability  of  the  law  to  them.  So, 
on  an  indictment  for  bigamy,  the  first  marriage,  even 
though  solemnized  in  a  foreign  country,  may  be 
proved  by  the  admission  of  the  accused,  (e) 

53 1.  Self-disserving  statements  may  in  general  be 
made,  either  by    a   party  himself,  or    by  those  under 

(y)  Lofft,  M.  553.  sub-sect.  s. 

(s)  Dig.  lib.  50,  tit.  17, 1.  116.  (d)  i  Greenl.  Ev.  §  96,  7th  Ed 

(a)  1  Ev.  Poth.  §  800.  (t)  1  East.  P.  C.  471  ;    R.  v.   New 

(b)  Kelly  v.   Solari,  9  M.  &  W.   54,  ton,    2    Moo.  &  R.  503  ;    R.  v.   Sim- 
and  the  cases  there  referred  to.  monsto,  1  Car.  &  K.  164.     But  see  R. 

(c)  Dig.  lib.   42,  tit   2,  1.  2  ;    1   Ev.  v.  Flaherty,  2  Id.  782. 
Poth.  §  800.     See  supra,  ch.  2,  sect.  2, 

239;  State  v.  Motley,  7  Rich.  (S.  C.)  327.  Confession  made 
by  a  prisoner  to  a  fellow-prisoner  who  was  serving  out  a  term 
of  imprisonment  for  crime,  held  admissible;  Commonwealth 
v.  Harlow,  3  Brews.  (Pa.)  461  ;  even  though  obtained  by  deceit, 
the  person  having  been  placed  there  for  the  purpose. 

1  Ignorance  of  a  fact  is  ground  of  relief.  They  who  mis- 
take are  not  supposed  to  consent. 

3  He  who  mistakes  does  not  confess. 


pi8     SECONDARY    RULES    OF    EVIDENCE. 

whom  he  claims,  or  by  his  attorney  or  agent  lawfully 
authorized — an  application  of  the  maxims,  "Qui  pei 
alium  facit,  per  seipsum  facere  videtur  ; "  (_/")  "  Qui 
facit  per  alium  facit  per  se."  (g)  '  This  of  course 
means,  that  the  party  against  whom  the  admission  or 
confession  is  offered  in  evidence,  is  of  capacity  to 
make  such  admission  or  confession.  On  this  subject 
the  civilians  laid  down,  "  Qui  non  potest  donare  non 
potest  confiteri."  (/£)  2  So  there  are  some  acts  which 
can  not  be  done  by  attorney,  and  some  persons  who 
can  not  appoint  one, — as,  for  instance,  infants.  And 
the  person  appointed  to  act  for  another,  can  not  dele- 
gate this  authority  to  a  third,  it  being  a  maxim  of 
law,  "  Delegata  potestas  non  potest  delegari,"  (Y) 
"  Delegatus  non  potest  delegare."  (/£)  3 

(/)  Co.   Litt.  2sSa  ;    4   Inst.    109;  (i)  7  C.  B.,  N.  S.  496,  49S  ;  2  Inst. 

10  Co.    33b  ;  2   Jur.,   X.   S.    iS.     See  597. 

also  Sext.  Decret.  lib.  5,  tit.  T2,  de  reg.  (k)  Brom's  Max.  807,  809,  4th  Ed. ; 

jur.,  Reg.  72.  3   M.  &   W.  319-20  ;  5   Bingh.  N.  C 

(g)  Lofft,  M.  163  ;  9  CI.  &  F.  850.  310 ;  8  C  B.  630. 

\h)  1  Ev.  Both.  §  804. 

1  He  who  acts  through  another  is  regarded  as  acting  him- 
self. 

2  He  who  is  not  able  to  give  is  not  able  to  confirm. 
*  A  delegated  power  can  not  again  be  delegated. 


SELF-REGARDING    EVIDENCE.  919 


SECTION    II. 

ESTOPPELS. 

PARAGRAPH 

Estoppels 532 

Nature  of *  533 

Use  of 534 

Principal  rules  relative  to 535 

1.  Must  be  mutual  or  reciprocal 525 

2.  In  general  only  affect  parties  and  privies         ....  536 

3.  Conflicting  estoppels  neutralize  each  other          ....  537 
Different  kinds  of 538 

1.  Estoppels  by  matter  of  record     .......  539 

Pleading 54° 

Admissions  in  pleadings       ........  541 

2.  Estoppels  by  deed 54- 

Recitals 542 

3.  Estoppels  by  matter  in  pais  ' 543 

How  made  available        ..........  544 

Whether  "  allegans  suam  turpitudinem  non  est  audiendus  "  is  a  maxim 

of  the  common  law      .  .........  545 

532.  An  important  distinction  runs  through  the 
whole  subject  of  self-disserving  evidence,  namely,  that 
while  in  general  its  value  is  to  be  weighed  by  a  jury, 
the  law  has  invested  some  forms  of  it  with  an  absolute 
and  conclusive  effect.  Such  are  technically  termed 
"  Estoppels," — a  doctrine,  the  exposition  of  which  in 
all  its  branches  belongs  rather  to  substantive  than  to 
adjective  law.  Some  notice  of  its  nature,  and  the 
general  principles  by  which  it  is  governed,  are,  how- 
ever, indispensable  here  ;  and  estoppels  in  criminal 
cases  will  be  more  particularly  considered  in  the  next 
section.  (/) 

533.  Much  misconception  and  prejudice  have 
arisen,  from  the  unlucky  definition   or   description  of 

(/)  Infra,  sect.  3,  sub-sect.  I. 


920    SECONDARY    RULES    OF    EVIDENCE. 

estoppel  given  by  Sir  Edward  Coke,  namely,  that  it  is 
where  "a  man's  own  act  or  acceptance  stoppeth  or 
closeth  up  his  mouth  to  allege  or  plead  the  truth."  (in) 
If  this  is  looked  on  as  a  definition,  it  violates  the  rules 
of  logic,  by  defining  by  the  genus,  and  non-essential 
difference  or  accident ;  and  if  as  a  description,  which 
indeed  Sir  Edward  Coke  himself  calls  it.  it  is  almost 
equally  objectionable  ;  for  one  would  imagine  from  the 
above  language,  that  truth  was  the  enemy  which  the 
law  of  estoppel  was  invented  to  exclude.  So  far,  how- 
ever, was  this  from  being  the  case,  that  its  object  is  to 
repress  fraud  and  harassing  litigation,  and  to  render 
men  truthful  in  their  dealings  with  each  other ;  and  there 
can  be  no  question  that,  rightly  understood  and  prop- 
erly applied,  it  often  produces  those  effects,  and  is  a 
valuable  auxiliary  in  the  hands  of  justice.  The  defini- 
tion given  in  the  Termes  de  la  Ley  (»)  is  much  bet- 
ter :  "  Estoppel  is  when  one  man  is  concluded  and 
forbidden  in  law  to  speak  against  his  own  act  or  deed  , 
yea,  though  it  be  to  say. the  truth."  Still  "forbidden 
to  say  the  truth  "  sounds  harsh  ;  and  both  definitions 
are  inadequate,  as  not  including  all  the  cases  to  which 
the  term  "  Estoppel "  is  applicable.  On  the  whole 
an  estoppel  seems  to  be  when,  in  consequence  of  some 
previous  act  or  statement  to  which  he  is  either  party 
or  privy,  a  person  is  precluded  from  showing  the 
existence  of  a  particular  state  of  facts.  Estoppel 
is  based  on  the  maxim,  "  Allegans  contraria  non  est 
audicndus;"    (<?)  '  and  is  that  species  of   presumptio 

(w)  Co.  Litt.  352a.     See  also  2  Co.  542. 

4b.  (o)  4  Inst.  279  ;  Jenk.  Cent.   2  Cas. 

(it)  Termes  de  la  Ley,  tit.  Estoppel.  63  ;  Broom's  Max.  169,  4th  Ed. 
See  to  the  same  effect,  1  Liil.  Pr.  Reg. 

1  A  party  offering  evidence  contrary  to  his  plea  is  not  to  be 
heard. 


SELF-REGARDING    EVIDENCE.  921 

juris  et  de  jure,  where  the  fact  presumed  is  taken  to 
be  true,  not  as  against  all  the  world,  but  as  against  a 
particular  party,  and  that  only  by  reason  of  some  act 
done : — it  is  in  truth  a  kind  of  argumentum  ad  homi- 
nem.  (/)  Hence  it  appears  that  "Estoppels"  must 
not  be  understood  as  synonymous  with  "Conclusive 
evidence  ; "  the  former  being  conclusions  drawn  by  law 
against  parties  from  particular  facts,  while  by  the  latter 
is  meant  some  piece  or  mass  of  evidence,  sufficiently 
strono-  to  generate  conviction  in  the  mind  of  a  tribu- 
nal,  {(/)  or  rendered  conclusive  on  a  party,  either  by 
common  or  statute  law. 

534.  "  Estoppels,"  it  has  been  said,  are  "  a  head  of 
law  once  tortured  into  a  variety  of  absurd  refinements 
but  now  almost  reduced  to  consonancy  with  the  rules 

of  common  sense  and  justice In  our  old 

law  books,  truth  appears  to  have  been  frequently  shut 
out  by  the  intervention  of  an  estoppel,  where  reason 
and  good  policy  required  that  it  should  be  admitted. 
.  .  .  However,  it  is  in  no  wise  unjust  or  unrea- 
sonable, but,  on  the  contrary,  in  the  highest  degree  rea- 
sonable and  just,  that  some  solemn  mode  of  declaration 
should  be  provided  bv  law,  for  the  purpose  of  enabling 
men  to  bind  themselves  to  the  sfood  faith  and  truth  of 
representations  on  which  other  persons  are  to  act.  Inte- 
rest republican  ut  sit  finis  litium  ' — but,  if  matters  which 
have  been  once  solemnly  decided  were  to  be  again 
drawn  into  controversy,  if  facts  once  solemnly  affirmed 
were  to  be  again  denied  whenever  the  affirmant  saw  his 
opportunity,  the  end  would  never  be  of  litigation  and 

(/)  See  the  judgment  of  the  court  in       Barons  in  Machu  v.  The  London   and 
Collins  v.  .Martin,  i  B.  &  P.  64S.  South- Western    Railway  Company,  2 

(</)  See     the    observations    of     the      Exch.  415. 

1  It  is  in  the  interest  of  the  state  that  there  be  an  end  o\ 
itigatiun,  i.  e.,  it  is  public  policy  to  discourage  litigation 


922     SECONDARY    RULES     OF    EVIDENCE. 

confusion.  It  is  wise,  therefore,  to  provide  certain 
means  by  which  a  man  may  be  concluded,  not  from 
saying  the  truth,  but  from  saying  that  that  which,  by 
*he  intervention  of  himself  or  his,  has  once  become  ac- 
credited for  truth,  is  false.  And  probably  no  code, 
however  rude,  ever  existed  without  some  such  provision 
for  the  security  of  men  acting,  as  all  men  must,  upon 
the  representations  of  others."  (V)  "  The  courts  have 
been,  for  some  time,  favorable  to  the  utility  of  the 
doctrine  of  estoppel,  hostile  to  its  technicality.  Per- 
ceiving how  essential  it  is  to  the  quick  and  easy  trans- 
action of  business,  that  one  man  should  be  able  to  put 
faith  in  the  conduct  and  representations  of  his  fellow, 
they  have  inclined  to  held  such  conduct  and  such 
representations  binding,  in  cases  where  a  mischief  or 
injustice  would  be  caused  by  treating  their  effect  as 
revocable.  At  the  same  time,  they  have  been  unwill- 
ing to  allow  men  to  be  entrapped  by  formal  state- 
ments and  admissions,  which  were  perhaps  looked 
upon  as  unimportant  when  made,  and  by  which  no 
one  ever  was  deceived  or  induced  to  alter  his  position. 
Such  estoppels  are  still,  as  formerly,  considered 
odious."  (s) 

535-  Several  rules  respecting  estoppels  are  to  be 
found  in  the  books.  The  most  important  are  the  fol- 
lowing, i.  That  estoppels  must  be  mutual  or  recipro- 
cal, i.  e.,  binding  both  parties.  (7)  x  But  this  does  not 
hold  universally  ;  for  instance,  a  feoffor,  donor,  lessor, 

(;-)  2  Smith,  Lead.  Cas.  656,  5th.  Ed.  Ed. 

See  also  per  Curiam,  in  CuthberUon  v.  (/)  Com.     Dig.    Estoppel,    B. ;    Co. 

Irving,  4  H.  &  N.  758.  Litt.  352a  ;  Cro.  Eliz.  700,  pi.  16. 

(s)  2  Smith.   Lead.  Cas.   725-6,    5th 

1  Both  parties  must  be  bound,  or  neither  is  estopped. 
Longwell  v.  Bentley,  3  Grant  (Pa.)  Cas.  177;  Schuhman  v. 
Garratt,  j6  Cal.   .00;  Boiling  v.  Mayor,  3   Rand.   (Va.)  563. 


SELF-REGARDIXG    EVIDENCE.  923 

&c.  by,  deed  poll  will  be  estopped  by  it,  although  there 
is  no  estoppel  against  the  feoffee,  &c.  («)  Mr.  J.  W. 
Smith,  in  the  work  already  cited,  (x)  suggests  that  the 
rule  will  be  found  to  apply  to  those  cases  only,  where 
both  parties  are  intended  to  be  bound. 

536.  In  general  estoppels  affect  only  the  parties 
and  privies  to  the  act  working  the  estoppel  ;  strangers 
are  rot  bound  by  them,  and  can  not  take  advantage 
of  them,  (jj/)  '  When,  however,  the  record  of  an 
estoppel  runs  to  the  disability  or  legitimation  of  the 
person,  strangers  shall  both  take  the  benefit  of,  and  be 
concluded  by  that  record ;  as  in  case  of  outlawry, 
excommunication,  profession,  attainder  of  praemunire, 
of  felony,  &c.  (2)  But  a  record  concerning  the  name, 
quality,  or  addition  of  the  person  has  not  this 
effect,  (a) 

537.  3.  It  seems  that  conflicting  estoppels  neutral- 
ize each  other,  or,  as  our  books  express  it,  "  Estoppel 
against  estoppel  doth  put  the  matter   at  large."  (&) ' 

(«)  Co.  Litt.  47b  ;  363b.  (2)  Co.  Litt.  352b. 

(x)  2  Smith,    Lead.    Cas.    660,  5th  (a)  Td. 

Ed.  (l>)  Id.  ;  2    Smith.    Lend.   Cas.   660, 

(y)  Co.  Litt.  352a;    Com.  Dig.  Es-      5tb  Ed. ;  R.  v.  Houghton,  1   E.  &  B. 
toppel,  B.  &  C  506,  per  Lord  Campbell,  C  J. 

1  Estoppels  bind  only  parties  and  privies,  and  can  be  taken 
advantage  of  only  by  those  who  are  bound  by  them  ;  and  to 
be  binding  they  must  be  mutual.  Griffin  v.  Richardson,  1 1 
Ired.  (N.  C.)  L.  439  ;  Deery  v.  Cray,  5  Wall.  795  ;  Nutwell  v. 
Tongue,  22  Md.  419  ;  Williams  v,  Chandler,  25  Tex.  4  ;  Brain- 
tree  v.  Higham,  17  Mass.  432  ;  Worcester  v.  Green,  2  Pick. 
(Mass.)  425  ;  Lauger  v.  Filton,  1  Rawle  (Pa.)  141;  Griggs  v. 
Smith,  12  N.  J.  L.  (7  Hals.)  22.  They  can  only  be  asserted  01 
pleaded  by  one  who  was  affected  by  the  act  which  constitutes 
the  estoppel.  Miles  v.  Miles,  8  Watts  &  S.  (Pa.)  T35.  One 
who  is  not  bound  by  an  estoppel  can  not  take  advantage  of  it. 
Lansing  v.  Montgomery,  2  Johns.  (N.  Y.)  382. 

2  Carpenter  v.    Thompson,   3    N.    H.   204.     So   a  party   in 
laches  can  not  complain  of  the  neglect  or  delay  of  his  adver 
sary  arising  from  that  laches. 


924    SECONDARY    RULES    OF    EVIDENCE. 

Thus,  if  the  plaintiff  in  action  makes  title  to  a  common 
by  grant  within  time  of  memory,  and  then  in  another 
action  between  the  same  parties  makes  title  by  pre- 
scription, and  the  other  admits  this  ;— this  last  estoppel 
shall  avoid  the  first  estoppel,  so  that  the  plaintiff  may 
make  title  to  the  common  by  prescription.  (V)  So 
where  in  a  praecipe  quod  reddant  against  two,  who 
pleaded  joint  tenancy  with  a  third,  the  demandant  said, 
that  formerly  he  bought  a  writ  against  one  of  the  two, 
who  pleaded  joint  tenancy  with  the  other,  whereby 
the  writ  abated  ;  on  which  he  purchased  this  writ  by 
journeys  accounts,  averring  that  the  two  were  sole 
tenants  on  the  day  of  the  first  writ,  &c,  whereon  the 
tenants  vouched  the  third  party  with  whom  they  had 
pleaded  joint  tenancy  :  on  its  being  objected  that  this 
voucher  could  not  be  received,  because  they  had  sup- 
posed him  joint  tenant  with  them,  it  was  answered 
that,  as  the  plaintiff  had  alleged  that  the  defendants 
were  sole  tenants,  he  had  ousted  himself  of  the  right 
to  estop  them  from  that  voucher,  (d) 

538.  Estoppels  are  of  three  kinds,  (e)  1.  By  matter 
of  record.     2.  By  deed.  (_/*)     3.  By  matter  in  pais. 

539.  1.  Estoppels  by  matter  of  record;  as  letters 
patent,  fine,  recovery,  pleading,  &c.  (g)  The  most 
important  form  of  this  is  estopped  by  judgment,  which 
will  be  considered  under  the  head  of  res  judicata.  (Ji) 

540.  With  respect  to  estoppels  by  pleading.     A 

(<•)  I  Roll.  Abr.  874,  pi.  50,  citing  II  in    writing."       But    it    is     clear    that 

Hen.  VI.  27b,  28a.  "  deed  "  was  meant  ;  and   in   our  old 

(d)  Fitz.  Abr.  Estop,   pi.  3,  citing  41  books    the    word    "writing"    is   con- 

Edw.    III.    5,  pi.    II.     For  other   in-  stantiy  used  in  that  limited  sense.  See 

stances,    see    i    Roll.  Abr.    S74,   S75  ;  bk.  2,  pt.  3,  ch.  1,  §  217,  note  (/-),  and 

and  D'Anvers'  Abridgment   Estoppel,  §  225,  note  (*"). 
S.  (g)  Co.  Litt.  352a  ;  Com.   Dig.  Es- 

(<?)  Co.   Litt.  352a  ;    2   Smith,  Lead.  toppel;  A.  1  ;    1  Roll.  Abr.  862  et  seq. 

Cas.  657,  5 1 1 1  Ed.  tit.  Estoppel. 

If)  CoL  :.  cit.)  says,  "  matter  (Ji)  Infra,  ch.  9  . 


SELF-REG  A  RDIXG    EVIDENCE.  925 

party  who  does  not  plead  within  the  time  required  by 
law,  is  taken  to  confess  that  his  adversary  is  entitled 
to  judgment.  So  a  party  may,  by  resorting  to  one 
kind  of  plea,  be  concluded  from  afterwards  availing 
himself  of  another.  It  is  a  well-known  rule  of  plead 
ing,  that  pleas  in  abatement  can  not  be  pleaded  aftei 
a  party  has  pleaded  in  bar,  and  that  pleas  to  the  juris 
diction  can  not  be  pleaded  after  pleas  in  abatement  ' 

1  So  if  a  party,  instead  of  taking  advantat,  t  of  an  estoppel 
by  demurrer  or  plea,  takes  issue  on  the  matter  of  estoppel, 
the  estoppel  is  waived.  Burdit  v.  Burdit,  2  k.  K.  Marsh.  (iCy.) 
143;  Keel  v.  Ogden,  3  Dana  (Ky.)  103;  B/insmaid  v.  iUayo, 
9  Vt.  31.  Where  the  matter  on  which  an  estoppel  arises  has 
not  appeared  in  the  preceding  pleadings,  it  is  unnecessary  to 
plead  it  specially.  Howard  v.  Mitchell,  14  Ma:«.  241  ; 
Adams  v.  Barnes,  17  Id.  365.  An  estoppel  is  to  be  pleaded 
where  the  matter  to  be  concluded  appears  on  the  record  ; 
otherwise  where  it  is  introduced  on  the  general  issue.  Davis 
v.  Thomas,  5  Leigh  (Va.)  1.  Only  a  technical  estoppel,  as 
one  by  deed  to  the  party  pleading,  or  to  one  under  whom  he 
claims,  or  by  matter  of  record,  need  be  pleaded  specially ; 
other  estoppels,  being  in  pais,  can  not  be  specially  pleaded,  but 
must  be  given  in  evidence  to  the  court  and  jury,  and  may 
operate  as  effectually  as  technical  estoppels  under  the  direc- 
tion of  the  court.  Hostler  v.  Hays,  3  Cal.  302.  After  joinders 
on  an  issue  of  fraud  in  obtaining  a  discharge,  an  estoppel  can 
not  be  taken  advantage  of  against  the  party  pleading  the 
fraud;  but  it  must  be  pleaded.  Sawyer  v.  Hoyt,  2  Tyler 
(Vt.)  288.  If,  to  a  plea  of  former  recovery,  the  plaintiff 
reply  that  the  causes  of  action  are  not  the  same,  the  issue 
is  for  a  jury.  James  v.  Lawrenceburgh  Insurance  Co., 
6  Blackf.  (Ind.)  525.  One  unsuccessfully  pleading  an  es- 
toppel is  not  afterwards  precluded  from  confessing  and 
avoiding  or  traversing  the  allegations  of  his  adversary.  Dana 
v.  Bryant,  6  111.  (1  Gilm.)  104.  A  jury  is  bound  by  an  estop- 
pel, and  the  court  will  disregard  a  finding  contrary  thereto, 
except  where  the  party  has  waived  his  rights  by  mispleading. 
Bufferlow  v.  Newson,  1  Dev.  (N.  C.)  L.  20S.  Where  an 
estoppel  is  offered  in  evidence,  the  jury  are  not  preclude 
from  finding  the  truth  of  the  case.  Elliott  v.  Eslava,  3  Ala 
568.  Where  A.  brought  trespass  quare  clausum  against  B.,  to 
which  B.  pleaded  title  in  C,  under  whom  he  claimed  without 


926     SECONDARY    RULES    OF    EVIDENCE. 

541.  As  to  the  effect  of  admissions,  express  or  im 
plied,  in  pleadings  :  the  following  rule,  which  certainly 
savors  of  technicality,  is  laid  down  in  the  books  :  viz., 
that  the  material  facts  alleged  by  one  party,  which  are 
directly  admitted  by  the  opposite  party,  or  indirectly 
admitted  by  taking  a  traverse  on  some  other  facts, 
can  not  be  again  litigated  between  the  same  parties, 
and  are  conclusive  evidence  between  them,  but  only  if 
the  traverse  is  found  against  the  party  making  it.  (7) 
But  whether,  and  to  what  extent,  the  admitting  or 
passing  over  a  traverseable  allegation  in  pleading,  is 
to  be  deemed  an  admission  of  it  for  the  purposes  of 
evidence  of  the  trial,  is  a  question  which  has  given 
rise  to  a  considerable  conflict  of  authority  and 
opinion.  (/)  ' 

(/)  Per  Parke,  B.,   in  delivering  the  Groves,  2    M.  &  W.   642  .  Bennion  v. 

judgment  of  the  court   in    Boileau  v.  Davison,  3  Id.  179  ;  Smith  v.  Martin, 

v.  Rutlin,  2   Exch.  665.     See   Robins  9  Id.    305  ;   Carter  v.   James,    13    Id. 

v.    Lord    Maidstone,    4    Q.    B.     Sn  ;  137;    Meiklejohn,  8  Exch.  634;  Bing- 

Brook  Abr.  I'rotestacion,  pi.  14;    and  ham   v.  Stanley,  2    Q.  117;  Robins  v. 

Co.  Litt.  124b.  Lord  Maidstone,  4   Id.  Sn  ;  Bonzi  v. 

(y)  The  following  are  the  principal  Stewart,   4   M.   &  Gr.  295;   Fearn   v. 

cases  on  this   subject  : — Edmunds  v.  Filica,  7  Id.  513. 

showing  how  C.'s  title  was  derived  or  when  it  accrued;  A. 
may  give  in  evidence  an  award  against  the  title  of  C,  with- 
out pleading  it.  Shelton  v.  Alcox,  11  Conn.  240.  Where  a 
writing  is  brought  in  by  a  party  merely  as  evidence,  the  other 
party  may  avail  himself  of  it  as  an  estoppel,  at  any  time  while 
it  is  competent  for  the  court  to  instruct  the  jury  as  to  the 
effect  of  evidence.  Hall  v.  Haun,  5  Dana  (Ky.)  55.  A  party 
relying  on  matter  of  estoppel  must  plead  it,  if  he  have  oppor- 
tunity. If  not,  it  may  be  given  in  evidence  under  the  general 
issue.  Howard  v.  Mitchell,  14  Mass.  241  ;  Isaacs  v.  Clark,  12 
Vt.  692;  Woodhouse  v.  Williams,  3  Dev.  (N.  C.)  L.  508; 
McNair  v.  OTallon,  8  Mo.  iSS  ;  Lord  v.  Bigelow,  8  Vt.  461. 

1  Where  the  appearance  of  a  defendant  to  a  suit  is  of 
record,  it  can  not  be  denied  by  plea  or  otherwise.  Thompson 
v.  Emmert,  4  McLean,  96,  and  Reed  v.  Pratt,  2  Hill  (N.  Y.) 
64.  A  defendant,  after  appearing  and  obtaining  a  rule  that 
the  complainant  shall  give  security  for  costs,  is  estopped  to 


SELF-REGARDING    EVIDENCE.  927 

542.  2.  Estoppels  by  deed.  "  Nemo  contra  factum 
suum  proprium  venire  potest."  (/£)  "  A  deed,"  says 
Mr.  Justice  Blackstone,  (/)  "  is  the  most  solemn  and 

(k)  2  Inst.  66  ;   Lofft,  M.  322.  (/)  2  Elackst.  Com.  295. 

object  to  the  subpoena  not  having  been  served  on  him.  Dunn 
v.  Keegin,  4  111.  (3  Scam.)  292.  Where  plaintiff  in  replevin  in 
his  declaration,  alleges  defendant  to  be  in  possession  of  prop- 
erty, and  detaining  the  same  from  him,  he  is  estopped  from 
denying  defendant's  possession  at  the  time  of  action  brought. 
Kingsbury  v.  Buchanan,  11  Iowa,  387.  And  so,  if  he  alleges 
in  his  declaration  the  incorporation  of  the  defendants,  he  is 
estopped  to  deny  that  they  had  a  charter.  Hinsdale  v.  Larned, 
16  Mass.  65.  Plaintiff,  in  an  action  on  a  promissory  note,  is 
not  estopped  from  asserting  his  title  to  the  note  by  the  record 
of  a  former  unsuccessful  suit  which  he,  as  the  attorney  for  the 
payee,  instituted  in  the  name  of  the  latter;  such  record  if 
ndmissible  in  evidence,  if  at  all,  only  as  tending  to  shov 
want  of  title  in  the  present  plaintiff;  and  where  evidence 
on  this  point  is  conflicting,  it  is  a  question  for  the  jury. 
Wheeler  v.  Ruckman,  1  Robt.  (N.  Y.)  40S ;  2  Abb.  Pr. 
N.  S.  186.  The  admission  by  a  defendant,  in  his  original 
answer,  that  he  married  the  deceased,  will  not  estop  him 
from  amending  his  pleadings,  by  alleging  the  absolute 
nullity  of  such  a  marriage.  Summerlin  v.  Livingston, 
15  La.  Ann.  519.  Where  a  defendant's  answer  admitted  an 
indebtedness  to  the  plaintiff  to  a  certain  amount,  but  averred 
that  a  considerable  sum  was  due  from  the  plaintiff  to  him, 
the  admission  is  conclusive  as  to  the  item  confessed.  Betal 
v.  Mougin,  17  La.  Ann.  289.  As  against  a  purchaser  at  a 
sale,  the  defendant  in  a  foreclosure  suit  is  estopped  from 
denying  the  truth  of  her  answer.  McGee  v.  Smith,  13  N.  J.  L 
(1  Green)  462.  One  of  M.'s  heirs  brought  a  bill  in  equity 
against  his  executors  and  other  persons  interested  in  the 
estate,  alleging  due  execution  of  such  will  by  M.,  but  averring 
that  the  trusts  therein  were  repugnant  to  law  and  void,  and 
praying  a  distribution  of  M.'s  estate  as  in  cases  of  intestacy. 
Admission  of  the  due  execution  of  a  will  by  a  party  de- 
fendant, does  not,  under  certain  circumstances,  estop  him 
from  denying  its  valid  execution  and  opposing  its  probate,  when 
offered  to  be  proved  before  the  surrogate.  Mason  v.  Alston,  9 
N.Y.  28.  A  defendant,  by  permitting  the  death  of  one  of  the  plain- 
tiffs to  be  suggested  on  the  record,  without  opposition,  before 
the  trial  commences,  admits  the  suggestion  to  be  true.    I  lender 


928     SECONDARY    RULES    OF    EVIDENCE. 

authentic  act  that  a  man  can  possibly  perform,  with 
relation  to  the  disposal  of  his  property  ;  and  therefore 
a  man  shall  always  be  estopped  by  his  own  deed,  or  not 
permitted  to  aver  or  prove  anything,  in  contradiction  to 
what  he  has  once  so  solemnly  and  deliberately  avowed." 
This  rule,  however,  must  be  understood  to  apply,  only 
where  an  action  is  brought  to  enforce  rights  arising  out 
of  the  deed,  and  not  collateral  to  it ;  (m)  and  it  does 

(m)  Wiles  v.    Woodward,    5   Exch.  557,  563. 

son  v.  Reeves,  6  Blackf.  (Ind.)  101.  One  who  has  paid  money 
into  court,  upon  a  quantum  meruit  count,  is  estopped  to  deny 
the  contract  as  alleged.  Huntington  v.  American  Bank,  6 
Pick.  (Mass.)  340.  Where  a  plaintiffs  attorney  has  returned 
the  defendant's  answer  because  he  deems  it  frivolous,  and  the 
defendant  afterwards  admits  in  court  that  he  no  longer  deems 
it  effectual  as  an  answer,  the  latter  is  estopped  from  claiming 
that  it  is  an  answer,  so  as  to  prevent  a  default.  Hoffaring  v. 
Grove,  42  Barb.  (N.  Y.)  54S.  Where  a  defendant  serves  copies 
of  affidavits  on  a  plaintiff,  the  originals  of  which  are  on  file, 
he  can  not  afterwards  object  to  reading  the,  copies  in  evidence, 
but  they  are  to  be  considered  as  equivalent  to  office  copies. 
Jackson  v.  Harrow,  11  Johns.  (N.  Y.)  434.  Where  the  party 
entitled  to  draw  up  an  order,  drew  it  up,  and  sanctioned  the 
entry  of  it,  as  of  the  time  when  the  decision  was  made,  and 
served  a  copy  of  such  order  upon  the  adverse  party— held, 
that  he  could  not  be  permitted  to  allege  that  the  order  was 
not  entered  at  the  time  when  it  purported  to  have  been.  Whit- 
ney v.  Belden,  4  Paige  (N.  Y.)  140;  North  American  Coal  Co 
v.  Dyett,  Id.  273. 

Parties  are  bound  by  the  written  admissions  made  in  the. 
progress  of  a  cause,  and  can  not  repudiate  them  at  pleasure. 
Elwood  v.  Lannon's  Lessee,  27  Md.  200.  Admission  made  in 
the  progress  of  a  suit,  as  a  substitute  for  proof  of  any  ma- 
terial fact,  or  by  pleading,  and  setting  forth  the  particular 
facts,  as  grounds  of  complaint  or  of  defense,  amount  in  law 
to  estoppels;  but  they  are  only  so  as  to  the  parties  to  the  suit, 
and  in  the  same  suit  in  which  they  are  made.  Carradine  v. 
Carradine,  2,3  Miss.  698.  Proving  a  debt,  and  receiving  a 
dividend,  under  an  unconstitutional  insolvent  law,  does  not 
estop  the  party  to  deny  that  he  assented  to  the  insolvent's  dis- 
charge.    Kimberly  v.  Ely,  6  Pick.  (Mass.)  440. 


ESTOPPEL.  929 

not  include  the  case  of  a  mere  general  recital  in  a  deed 
such  general  recital  not  having  the  effect  of  an  es- 
toppel, (n)  This  is  on  the  principle  "generale  nihil 
certum  implicat  ;"  (<?)  it  being  a  rule  that  an  estoppel 
must  be  certain  to  every  intent,  and  is  not  to  be  taken 
by  argument  or  inference  ;  (J>)  and  therefore  it  is  only 
a  special  recital  of  a  particular  fact  in  a  deed  which 
will  estop,  (q)  Many  cases  illustrative  of  this  distinc- 
tion are  to  be  found  in  the  reports ;  (r)  and  the  prin- 
ciple governing  the  subject  has  thus  been  laid  down : 
"  It  seems  clear  that  where  it  can  be  collected  from  the 
deed,  that  the  parties  to  it  have  agreed  upon  a  certain 
admitted  state  of  facts,  as  the  basis  on  which  they  con- 
tract the  statement  of  those  facts,  though  but  in  the 
way  of  recital,  shall  estop  the  parties  to  aver  the  con- 
trary." (s)  Perhaps  this  would  have  been  more  cor 
rect  if,  instead  of  saying  merely,  "  the  parties  have 
agreed,"  it  had  been  added,  "  or  must  be  taken  to  have 
agreed."  When  a  recital  is  intended  to  be  the  state- 
ment of  one  party  only,  the  estoppel  is  confined  to  that 
party,  and  the  intention  is  to  be  gathered  from  constru- 
ing the  instrument,  (t)  ' 

(n)  32    Hen.  VI.  16  ;  35  Id.  34  ;   2  (r)  See    1    Rol.   Abr,  872,  Estoppel 

Leon.  11,  pi.  17.    See  the  judgment  in  (P)  ;  1  Wms.  Saund.  216,  6th   Ed. ;  3 

Lainson  v.  Tremere,  1  A.  &  E.  801-2.  Leon.  118,  pi.  168. 

(0)  2  Co.  33b  ;   8  Co.  98a.  (s)  Per  Coltman,  J.,  in  delivering  the 

(/)  Co.  Litt.  352b  and  303a.  judgment   of   the   C.    P.   in   Young  v. 

{q)  See  2  Smith,  L.  C  706,  5th  Ed.;  Raincock,    7    C    B.   338  ;    recognized 

I  Wms.  Saund.  216;  6th  Ed.;  Lainson  and  confirmed   in  Stroughill  v.  Buck, 

t.  Tremere,  1  A.  &  E.  792  ;  Carpenter  14  Q.  B.  7S7. 

t.  Buller,  S  M.  &  W.  209.  (t)  Stroughill  v.  Buck,  14  Q.  B.  787. 

1  A  party  will  not  be  allowed  to  controvert  the  declaration 
he  has  made  by  deed;  Redman  v.  Bellamy,  4  Cal.  247  ;  La- 
joye  v.  Primar,  3  Mo.  529;  Pennel  v.  Veyant,  2  Harr.  (Del.) 
501  ;  Payne  v.  Atterbury,  Harr.  (Mich.)  414  ;  Ridgely  v.  Bond, 
18  Md.  433;  Campbell  v.  Knights,  24  Me.  332  ;  unless  it  be 
shown  to  have  been  procured  by  fraud;  Norton  v.  Sanders,  7 


930     SECONDARY    RULES    OF    EVIDENCE. 

543.  3.  Estoppels  by  matter  in  pais. — Of  these, 
Parke,  B.,  in  delivering  the  judgment  of  the  Court  of 
Exchequer,  in  Lyon  v.  Reed,  (»)  says,  "  The  acts  in 

(w)  13  M.  &  W.  2S5,  309.     See  also      derson  v.  Collman,  4  Man.  &  Gr.  209. 
the  judgment  of  Tindal,  C.  J.,  in  San- 

J.  J.  Marsh.  (Ky.)  12;  duress  or  error ;  McRae  v.  Creditors 
16  La.  Ann.  305.  In  order  to  create  an  estoppel  by  recital  in 
a  deed,  the  matter  must  be  directly  and  precisely  alleged,  and 
with  certainty  to  every  intent.  McComb  v.  Gilkey,  29  Miss. 
146.  As  a  general  rule,  an  estoppel  does  not  grow  out  of  a 
recital.  To  give  it  that  effect,  it  must  show  that  the  object  of 
the  parties  was  to  make  the  matter  recited  a  fixed  fact,  as  the 
basis  of  their  action.  Hays  v.  Askew,  5  Jones  (N.  C.)  L.  63. 
The  parties  to  deeds  are  estopped  to  deny  the  truth  of  the 
recitals  therein ;  and  if  the  deeds  are  offered  only  to  show  the 
transmission  of  the  legal  title,  the  truth  of  the  recitals  need 
not  be  proved  aliunde.  Bank  of  United  States  v.  Benning,  4 
Cranch  C.  Ct.  81.  Recitals  in  a  deed  are  binding  upon  all 
claiming  under  the  deed.  Douglas  v.  Scott,  5  Ohio,  194  ;  7 
Ohio,  Part  1,  227;  Denn  v.  Brewer,  1  N.  J.  L.  (Coxe)  172; 
Inskeep  v.  Shields,  4  Harr.  (Del.)  345  ;  Byrne  v.  Morehouse, 
22  111.  603;  McCesky  v.  Leadbetter,  1  Ga.  551;  Stewart  v. 
Butler,  2  Serg.  &  R.  (Pa.)  381  ;  Jackson  v.  Parkhurst,  9 
Wend.  (N.  Y.)  209  ;  Carver  v.  Jackson,  4  Pet.  1  ;  Crane  v. 
Morris,  6  Pet.  598.  The  record  of  a  deed  made  by  an  attor- 
ney will  be  notice  to,  and  operate  as  an  estoppel  upon,  his 
grantee  subsequently  taking  a  deed  from  him  in  his  own  name  ; 
Lee  v.  Getty,  26  111.  76  ;  and  the  deed  of  an  attorney,  in  trust, 
will  operate  as  an  estoppel  against  him  and  all  those  claiming 
under  him.  Id.  An  attorney,  executing  a  deed,  is  not  him- 
self estopped  by  the  covenants  therein.  Kerr  v.  Chalfant,  7 
Minn.  487.  The  doctrine  of  estoppel,  as  applicable  to  deeds 
without  warranty,  applies  to  married  women.  Graham  v. 
Meek,  1  Carg.  325.  Where  the  parties  derive  title  to  real 
estate  from  a  common  source,  they  are  estopped  from  denying 
the  seizin  and  title  of  the  original  claimant  from  whom  they 
derive  title.  And  where  parties,  deriving,  would  thus  be  es- 
topped, their  heirs  and  privies  in  estate  are  likewise  estopped. 
Royston  v.  Wear,  3  Head.  (Tenn.)  8;  Murphy  v.  Barnett,  2 
Murph.  (N.  C.)  251  ;  Gardner  v.  Siiarp,  4  Wash.  609;  Ellis  v. 
Jeans,  7  Cal.  409;  Bridge  v.  Wellington,  1  Mass.  219;  Mc- 
Clain  v.  Gregg,  2  A.  K.  Marsh.  (Ky.)  454.  Neither  party  to  a 
deed  of  bargain  and  sale  is  estopped  to  show  that   one  of  the 


ESTOPPEL.  931 

pais  which  bind  parties  by  way  of  estoppel  are  but 
few,  and  are  pointed  out  by  Lord  Coke,  Co.  Lit.  352a. 
They  are  all  acts  which  anciently  really  were,  and  in 
contemplation  of  law  have  always  continued  to  be,  acts 
of  notoriety,  not  less  formal  and  solemn  than  the  execu- 
tion of  a  deed,  such  as  livery,  entry,  acceptance  of  an 
estate,  and  the  like.  Whether  a  party  had  or  had  not 
concurred  in  an  act  of  this  sort,  was  deemed  a  matter 
which  there  could  be  no  difficulty  in  ascertaining,  and 
then  the  legal  consequences  followed."  But,  for  the 
reasons  already  stated,  (v)  the  courts  of  law  in  modern 
times,  adopting  a  principle  long  known  in  courts  of 
equity,  (x)  have  wisely  extended  this  species  of  estoppel 
beyond  its  ancient  limits;  and  although  the  actual 
decisions  respecting  its  application  in  certain  cases  may 
admit  of  question,  the  following  rule  has  been  laid  down 
by  authority,  and  may  be  looked  on  as  established. 
"  Where  one  by  his  words  or  conduct,  wilfully  causes 
another  to  believe  the  existence  of  a  certain  state  of 
things,  and  induces  him  to  act  on  that  belief,  so  as  to 
alter  his  own  previous  position,  the  former  is  concluded 
from  averring  against  the  latter  a  different  state  of 
things   as  existing   at  the  same   time,  (jy)  !     It  has, 

(v)  Supra,  §  534.  3rd  Ed. 

(x)  1  Fonbl.  Eq. bk.  I,  ch.  3,  sect.  4,  (j)  Pickard  v.  Sears,  6  A.  &  E.  469, 

bargainors  was  a  feme  sole,  although  the  deed  recites  that  she 
was  covert.  Brinegar  v.  Chaffin,  3  Dev.  (N.  C.)  L.  108. 
Where  plaintiff  and  defendant  derived  title  under  a  person 
once  in  possession  claiming  the  fee,  neither  is  at  liberty  to 
show  that  such  title  is  not  still  a  good  and  subsisting  one,  un- 
less one  can  show  that  he  has  acquired  another  and  a  better 
title  from  some  other  person.  Johnson  v.  Watts,  1  Jones  (N. 
C.)  L.  228.  A  grantee  is  not  estopped  by  the  recitals  in  the 
deed  from  giving  the  truth  in  evidence  to  support  it,  if  the 
othei*  party  goes  behind  the  deed  to  defeat  it.  Crosby  v. 
Chase,  17  Me.  369. 

1  Matters  of  estoppel  in  pais  consist  of  the  acts  or  declara- 


932      SECONDARY    RULES     OF    EVIDENCE. 

indeed,  been  said,  that  unless  the  representation 
amounts  to  an  agreement  or  license  by  the  party  who 
makes  it,  or  is  understood  by  the  party  to  whom  it  is 

474  ;  Freeman  v.  Cooke,  2  Exch.  654,  Clarke  v.  Hart,  6    Ho.    Lo.    Cas.  633, 

633  ;   Howard  v.  Hudson,  2  E.  &  B.  1;  644.  655-6,  669  ;  Cornish  v.  Abington, 

Simpson  v.  The  Accidental  Death  In-  4  H.  &  N.  549  ;  Gregg  v.  Wells,  10  A. 

surance  Company,  2  C.  B.,  N.  S.  289  ;  &  E.  00. 
Dunston   v.  Paterson,  Id.  495,  501-4  ; 

tions  of  a  person,  by  which  he  designedly  induces  another  to 
alter,  injuriously  to  himself,  his  previous  position.  Brown  v. 
Wheeler,  17  Conn.  345  ;  Kirney  v.  Farnsworth,  Id.  345  ; 
Rangelev  v.  Spring,  21  Me.  130;  Cummings  v.  Webster,  43 
Id.  192;  Matthews  v.  Light,  32  Me.  305;  Quirk  v.  Thomas, 
6  Mich.  76  ;  Wells  v.  Pierce,  27  N.  H.  (7  Fost.)  503  ;  Simons 
v.  Steele,  36  N.  H.  73  ;  Richardson  v.  Chickering,  41  N.  H. 
380;  Martin  v.  Righter,  10  N.  J.  Eq.  (2  Stock.)  510;  Corkhill 
v.  Landers,  44  Barb.  (N.  Y.)  21S;  Baker  v.  Seeley,  17  How. 
(N.  Y.)  Pr.  297;  Arnold  v.  Comman,  50  Pa.  St.  361;  Strong 
v.  Elsworth,  26  Vt.  366;  Cowles  v.  Bacon,  21  Conn.  451; 
Hawley  v.  Middlebrook,  28  Id.  527  ;  Stone  v.  Britton,  22  Ala. 
543  ;  Bank  v.  AVollastown,  3  Harr.  (Del.)  90  ;  Bryon  v.  Walton, 
14  Ga.  185;  Buckhalter  v.  Edwards,  16  Ga.  593;  Burton  v 
Black,  32  Ga.  53  ;  Niantic  Bank  v.  Dennis,  37  111.  381  ; 
Williams  v.  Jackson,  28  Ind.  334;  Tappan  v.  Morseman,  18 
Iowa,  499 ;  Lasselle  v.  Barnett,  1  Blackf.  (Ind.)  150 ;  Laski 
v.  Goldman,  18  La.  Ann.  294;  Forysth  v.  Day,  46  Me.  176; 
Plumer  v.  Lord.  9  Allen  (Mass.)  455 ;  Cook  v.  Finkler,  9 
Mich.  131  ;  Wyman  v.  Perkins,  39  N.  H.  218;  White  v.  Lang- 
don,  30  Vt.  599  ;  Allen  v.  Winston,  1  Rand.  (Va.)  65  ;  Preston 
v.  Mann,  23  Conn.  118;  Whitacre  v.  Culver,  8  Minn.  133; 
Heath  v.  Derry  Bank,  44  N.  H.  174.  Whatever  the  motive 
may  be,  one  who  so  acts  or  speaks  that  the  natural  conse- 
quence of  his  words  or  conduct  will  be  to  influence  another  to 
change  his  conduct,  is  legally  chargeable  with  an  intent  or 
willful  design  to  induce  the  other  to  believe  him,  and  to  act 
upon  that  belief,  if  such  proved  to  be  the  actual  result.  But,  as 
the  doctrine  of  estoppel  especially  concerns  conscience  and 
equity,  ignorance — unaccompanied  with  culpability  of  any 
kind — ought  to  excuse  conduct  and  language,  which  would 
otherwise  render  the  author  justly  responsible  for  their  effect. 
There  are  cases,  however,  where  the  excuse  of  ignorance,  can 
not  be  permitted  to  avail,  without  defeating  the  very  principle 
of  justice  upon  which  the  doctrine  of  estoppel    is  founded 


SELF- REGARDING    EVIDENCE.  933 

made  as  amounting  to  that,  the  above  rule  would  not 
apply,  (z)  But  it  would  seem  that,  at  least  in  equity, 
the  application  of  the  rule  is  not  thus  limited,  (a) 
Moreover,  by  "  willfully  "  in  this  rule  must  be  under- 
stood, not  that  the  party  represents  that  to  be  true 
which  he  knows  to  be  untrue,  but  only  that  he  means 
his  representation  to  be  acted  upon,  and  that  it  is  acted 
upon  accordingly.  For  if,  whatever  a  man's  real 
intention  may  be,  he  so  conducts  himself  that  a  rea- 
sonable man  would  take  his  representation  to  be  true, 
and  believe  that  it  was  meant  that  he  should  act  upon 
it ;  and  the  party  to  whom  it  was  made  does  act  upon 
it  as  true,  the  party  making  the  representation  will  be 
equally  precluded  from  contesting  its  truth.  (J>)  l     And 

(z)  Freeman  v.  Cooke,  2  Exch.  654,  Proa),  L.  Rep.,  6  Ap.  Ca.  352,  360. 

664  ;    Clarke   v.  Hart,  6    Ho.  Lo.  Cas.  (  b  )  Freeman  v.  Cooke,  2  Exch.  654, 

633,  644,  656  ;  Cornish  v.  Abington,  4  663  ;  Howard  v.  Hudson,  2  E.  &  B.  I  ; 

H.  &  N.  549,  555.  Cornish  v.  Abington,  4  H.  &  N.  549, 

(a)  See  per  Lord  Shelborne,  C,  Citi-  555  ;    White  v.  Greenish,  II  C  B.,  N. 

zens'  Bank  of  Louisiana  v.  First   Na-  S.  209,  230. 
tional  Bank  of  New  Orleans  (in  Dom. 

Preston  v.  Mann,  25  Conn.  118.  There  is  no  estoppel  without 
proof  that  the  claimant  had  knowledge  of  the  acts  or  sayings, 
and  relied  on  them,  and  not  on  his  own  judgment.  McCune 
v.  McMichael,  29  Ga.  312. 

1  To  the  operation  of  the  rule  it  is  necessary  :  1.  That  the 
action  or  declaration  of  the  person  must  be  willful  (/.  e.,  with 
knowledge  of  the  facts  upon  which  his  rights  depend,  or  with 
an  intention  to  deceive  the  other  party) ;  2.  He  must  at  least 
be  aware  that  he  is  giving  countenance  to  an  alteration  of  the 
conduct  of  the  other  whereby  he  will  be  injured,  if  the  repre- 
sentation is  untrne;  and  the  other  must  appear  to  have 
changed  his  position  by  reason  of  such  inducement.  Cope- 
land  v.  Copeland,  28  Me.  525  ;  Califf  v.  Hillhouse,  3  Minn. 
311  ;  Taylor  v.  Zepp,  14  Mo.  482;  Martin  v.  Angell,  7  Barb. 
(N.  Y.)  407;  Otis  v.  Sill,  8  Id.  102;  Carpenter  v.  Stilhvell,  12 
Id.  128;  Commonwealth  v.  Moltz,  10  Pa.  St.  527;  Eldred  v 
Hazlett,  23  Id.  307  Shaw  v.  Beebe,  35  Vt.  205  ;  Wooley  v. 
Edson,  Id.  214.  There  must  be  deception  and  change  of  con- 
duct, in  consequence,  to  estop  a  party  from  showing  the  truth. 
Davidson   v.   Young,  2^    HI-   M5  ;   Wilson   v.  Cartro,  31   Cal 


934     SECONDARY    RULES    OF    EVIDENCE. 

conduct,  by  negligence  or  omission,  where  a  duty  is 
cast  upon  a  person  by  usage  of  trade  as  otherwise,  to 
disclose  the  truth,  may  often  have  the  same  effect.  As, 
for  instance,  where  a  retiring  partner  omits  to  inform 
his  customers,  in  the  usual  mode,  of  the  fact,  that  the 
continuing  partners  are  no  longer  authorized  to  act  as 
his  agents;  he  is  bound  by  all  contracts  made  by  them 
with  third  persons,  on  the  faith  of  their  being  so 
authorized,  (c)  ' 

544.  It  has  been  made  a  question,  whether  estoppels 
in  pais  can  be  pleaded  ;  the  objection  being,  that  to 
plead  matter  in  pais  by  way  of  estoppel,  is  a  violation 

(c)  Freeman  v.  Cooke,  2  Exch.  654,      Scotland  v.  Needell,  1  F.  &  F.  461. 
663.     See  also  The  Western  Bank  of 

420;    Andrews  v.   Lyon,   11   Allen  (Mass.)   349;    Hazelton   v. 
Batchelder,  44  N.  H.  40 ;   Lawrence  v.  Brown,  5  N.  Y.  (1  Seld.) 
394;  Jewett  v.  Miller,  10  N.  Y.  (6  Seld.)  402;  Ryerss  v.  Far- 
well,   9   Barb.   (N.   Y.)   615;  Hawley  v.   Griswold,  42   Id.   18; 
Garlinghouse  v.  Whitwell,  51    Id.   208;  Brubaker  v.  Okeson, 
36  Pa.   St.   519;    Diller  v.   Brubaker,  52    Id.   498;    Dorrah  v. 
Bryant,  56  Id.  69;  Williams  v.  Chandler,  25  Tex.  4;   Hicks  v. 
Cram,  17  Vt.  449  ;  but  an  estoppel  will  never  be  allowed  where 
it  would  itself  perpetrate  fraud,  work  injustice,  or  fail  to  pro- 
tect the  innocent.     Mills  v.  Graves,  38  111.  455.     Persons  as- 
sociated and  acting  under  the   name  "  United  States  Express 
Company  "  are  estopped  to  deny  that  they  are  a  corporation. 
United  States  Express  Co.  v.  Bedbury,  34  111.  459.     A  partner 
who,  in  purchasing  property,  so  acts  as  to  make  the  seller  think 
that  he  is  selling  to  the  firm,  is  estopped  to  claim  that  he  was 
the  sole  purchaser.  White  Mountain  Bank  v.  West,  46  Me.  15. 
1  But  an  estoppel  in  pais  can  only  be  set  up  as  a  means  to 
prevent  injustice.     Thomas  v.  Bowman,   29   111.   426  ;  Pierre- 
point  v.  Barnard,  5  Barb.  364.     They  are  not  allowed  to  oper- 
ate except  where,  in  good  conscience  and  honest  dealing,  the 
party    ought  not   to  be  permitted   to  gainsay    his    admission. 
McAfferty  v.  Conover,  7  Ohio  St.  99.     Where  an  act  admits  o 
twb  constructions,  the  one  rightful  and  the  other  wrongful,  the 
rightful  character  will  be  imputed  to  it,  and  the  party  will  not 
be  heard  to   aver   that   he  acted  wrongfully,  or  be  allowed  to 
take   advantage  of  his   own    wrong.     Blount   v.    Robeson,   z 
Jones  (N.  C.)  Eq.  73. 


SELF-REGARDING    EVIDENCE.  935 

of  the  rule  of  pleading,  which  prohibits  the  putting  on 
the  record  any  matter  of  evidence,  however  conclusive. 
But  the  point  having  been  expressly  raised  on  demurrer 
to  a  replication,  in  a  case  of  Sanderson  v.  Collman,  (cT) 
was  unanimously  overruled  by  the  Court  of  Common 
Pleas.  Tindal.  C.  J.,  there  said,  '  If  we  find  upon  the 
record,  a  fact  which  would  have  entitled  the  plaintiffs  to 
a  verdict,  I  do  not  see  why  they  may  not  rely  upon  that 
fact  by  way  of  estoppel.  Estoppel  may  be  by  matter  of 
record,  by  deed,  and  by  matter  in  pais.  If  by  the  last 
branch  is  meant,  only  that  the  matter  may  be  given  in 
evidence,  it  would  certainly  not  be  pleadable,  and  ought 
not  to  be  put  on  the  record.  But  there  seems  to  be 
no  reason  why  the    meaning   should    be  so  confined 

Lord    Coke,    speaking    of   estoppel  by 

matter  in  pais,  refers  to  estoppel  by  acceptance  of 
rent  ;  and  it  may  be  said  that  this  naturally  would 
be  matter  of  evidence ;  but  looking  at  the  whole  of 
the  context,  he  appears  to  me  to  be  treating  it  as  be- 
ing on  the  record,  rather  than  as  a  matter  for  the 
jury."  And  Coltman,  J.,  adds,  "The  meaning  of  the 
rule,  I  apprehend,  is,  that  a  party  shall  not  plead  facts 
from  which  another  fact,  material  to  the  issue,  is  to  be 
inferred  ....  I  think  that  if  a  party  has  a  legal 
defense  to  that  which  is  set  up  against  him,  he  can 
not  be  precluded  from  pleading  such  defense." 
There  is,  however,  this  great  distinction  betv\een 
estoppels  by  record  or  by  deed  and  estoppels  in  pais, 
namely,  that  the  former  must,  in  order  to  make  them 
binding,  be  pleaded,  if  there  be  an  opportunity,  other- 
wise the  party  omitting  to  plead  the  estoppel  waives 
it,  and  leaves  the  issue  at  large,  on  which  the  jury 
may  find  according  to  the  truth  ;  while  with  respect 

(</)  Sanderson  ?    Collman,  4   Man.      &  Gr.  209.     See   Hallifax  v.  Lyle,   3 

Exch.  446. 


936     SECONDARY    RULES    OF    EVIDENCE. 

to  estoppels  in  pais,  they  need  not,  at  least  in  most 
cases,  be  pleaded  in  order  to  make  them  obligatory 
(e)  Thus,  where  a  man  represents  another  as  his 
agent,  in  order  to  procure  a  person  to  contract  with 
him  as  such,  and  he  does  contract,  the  contract  binds 
in  the  same  manner  as  if  he  had  made  it  himself,  and 
is  his  contract  in  point  of  law  ;  and  no  form  of  plead- 
ing could  leave  such  a  matter  at  large,  and  enable 
the  iury  to  treat  it  as  no  contract.  (_/")  This  dis- 
tinction is  said  not  to  be  recognized  in  America;  (g) 
and  it  has  been  objected  to  on  the  ground,  that  it 
appears  inconsistent  that  the  principle  of  the  authority 
of  res  judicata  should  govern  the  decision  of  a  court, 
when  the  matter  is  referred  to  them  by  pleading  the 
estoppel,  but  that  a  jury  should  be  at  liberty  to  disre- 
gard this  principle  altogether  ;  and  that  the  operation 
of  such  an  important  principle  as  that  of  res  judicata, 
should  depend  upon  the  technical  forms  of  pleading 
in  particular  actions.  (/*)  But  the  distinction  is  not 
without  reason.  Where  a  party  intends  to  conclude 
another  by  an  estoppel,  he  ought  to  give  him  an 
opportunity  of  deliberately  replying  to  it,  and  not 
spring  it  upon  him  at  Nisi  Prius.  With  due  notice, 
the  adversary  might  be  able  to  show  that  the  matter 
relied  on  as  an  estoppel  was  not  such  in  reality,  as 
not  relating  to  the  property  or  transaction  in  con- 
troversy ;  or,  if  it  were,  that  its  effect  had  been  re- 
moved by  matter  subsequent,  as,  for  instance,  that  the 
party  pleading  the  estoppel  had,  by  some  other  pro- 
ceeding, concluded  himself  from  taking  the  objection, 

{e)  Freeman  v.  Cooke,  2  Exch.  654,  4  Bingh.  N.  C.  7S2  ;  Lord  Feversham 

662  ;   1  Wms.  Saund.  325a,  n.  (d),  6th  v.  Emerson,  11  Exch.  3S5. 

Ed.;  2  Smith,  Lead.  Cas.  672,  707,  709,  (/)  Freeman  v.  Cooke,  2  Exch.  654, 

sth    Ed.,    Treviban    or    Trevivan    v.  662. 

La'-vr-a-,    2    Lord    Raym.    1036    and  (  :/ )  I  Greenl.  Ev.  fc;  531,  7th  Ed. 

1043  ,   1  Salic.  276  ;  Magrath  v    Hardy,  {h)  Ph.  &  Am.  Ev.  512. 


SELF-REG  A  RDING    E I LDENCE.  937 

— estoppel  against  estoppel  setting  the  matter  at 
large  ;  (z')  or,  when  the  estoppel  relied  on  is  a  judg- 
ment, that  that  judgment  had  been  reversed  on  error 
or  deprived  of  binding  force  by  an  act  of  parliament, 
&c.  The  willfully  keeping  back  an  estoppel,  is  not 
only  evidence  of  unfair  dealing  and  a  desire  to  sur- 
prise ;  but,  to  divest  it  of  its  conclusive  effect,  is  a 
jus4  punishment  on  the  party  who  has  unnecessarily 
called  the  jury  together,  and  wantonly  occasioned  the 
expense  of  a  trial.  It  may  be  asked,  why  then  are 
estoppels  by  matter  in  pais  conclusive  on  the  jury, 
seeing  that  they  may  be  pleaded  ?  That  is  probably 
a  remnant  of  the  old  notion,  that  matters  in  pais  were 
matters  of  notoriety  to  the  jury  coming  de  vicineto, 
(/£)  who  therefore  ought  not  to  be  required  to  find 
against  their  personal  knowledge  ;  whereas  deeds  and 
judgments  are  dead  proofs ;  (/)  the  former  of  which 
were  supposed  to  lie  in  the  peculiar  knowledge  of  the 
witnesses,  and  the  latter  being  on  record  in  the  courts. ' 
545.  Before  dismissing  the  subject  of  estoppel,  we 
would  direct  attention  to  the  question,  whether  the 
maxim  of  the  civil  law,  "  Allegans  suam  turpitudinem 
(or  suum  crimen)  non  est  audiendus,"  '*  is,  or  ever  was  a 
maxim  of  the  common  law.  Littleton  (m)  puts  the 
following  case :  "  If  a  man  be  disseised,  and  the  disseisor 
maketh  a  feoffment  to  divers  persons  to  his  use,  and 
the  disseisor  continually  taketh  the  profits,  &c,  and  the 
disseisee  release  to  him  all  actions  real,  and  after  he 
sueth  against  him  a  writ  of  entry  in  nature  of  an  assize 

.  (i)  Supra,  §  537.  (I)  Bk.  r,  pt.  2,  §  119. 

(k)  See  supra,  §  543  (in)  Sect.  499. 

1  But  see  Bank  v.  Wollaston,  3  Har.  (Del.)  90,  which  seems 
to  hold  that  an  estoppel  in  pais  is  not  pleadable. 

*  One  will  not  be  allowed  (or  heard)  to  criminate  himself. 


933      SECONDARY    RULES     OF    EVIDENCE. 

by  reason  of  the  statute,  because  he  taketh  the  profits 
&c.  Quaere,  how  the  disseisor  shall  be  aided  by  the 
said  release  ;  for  if  he  will  plead  the  release  generally 
then  the  demandant  may  say,  that  he  had  nothing  in 
the  freehold  at  the  time  of  the  release  made  ;  and  if  he 
plead  the  release  specially,  then  he  must  acknowledge 
a  disseisin,  and  then  may  the  demandant  enter  into  the 
land,  &c.,  by  his  acknowledgment  of  the  disseisin,  &c. 
But  peradventure  by  special  pleading  he  may  bar  him 
of  the  action  which  he  sueth,  &c.,  though  the  demand- 
ant may  enter."  Sir  Edward  Coke,  (ii)  in  commenting 
on  the  word  "he  must  acknowledge  a  disseisin,"  gives 
the  following  case:  "In  a  writ  of  dower  the  tenant 
pleaded,  that  before  the  writ  purchased  A  was  seised  of 
the  land,  &c.  until  by  the  tenant  himself  he  was  disseised, 
and  that  hanging  the  writ  A  recovered  against  him, 
&c. ;  judgment  of  the  writ,  and  adjudged  a  good  plea, 
in  which  the  tenant  confessed  a  disseisin  in  himself." 
For  this  is  cited  15  Edw.  IV.  4  B.,  (0)  and  correctly, 
except  that  instead  of"  recovered  against  him,"  it  should 
be  "  re-entered  upon  him."  There  are  some  other  cases 
in  the  Year  Books  to  the  same  effect.  Thus  in  the 
5  Edw.  IV.  5  B.  pi.  23,  in  a  praecipe  quod  reddat,  the 
tenant  showed  that,  long  before  the  writ  purchased 
one  H  was  seised  until  disseised  by  him,  and  that  H 
entered  the  hanging  the  writ,  judgment  of  the  writ,  and 
adjudged  good  plea  as  was  said  ;  the  reporter,  however, 
adding.  "  Sed  non  interfui."  And  in  the  case  already 
cited  from  the  15  Edw.  IV.,  Littleton  himself  is  re- 
ported to  have  put  this  case,  which  however  goes  much 
beyond  the  others,  "  If  I  disseise  P  and  levy  a  fine  to 
you,  and  then  P  enters  upon  you,  and  enfeoffs  me  and 
you  enter  on  me,  and  I  bring  an  assize,  and  you  plead 

(*;  Co.  Litt.  287a.  (0)  PI.  7. 


SELF-REGARDING    EVIDENCE.  939 

the  fine  in  bar,  I  may  avoid  the  fine  by  the  matter 
aforesaid,  so  a  man  may  take  advantage  of  his  wrong 
done  by  himself,  &c."  But,  on  the  other  hand,  Sir 
Edward  Coke  either  forgot  these  authorities  and  the 
passage  in  his  own  first  Institute,  or  he  supposed  some 
distinction  between  pleading  and  evidence  as  to  the 
principle  in  question  ;  for  in  the  4th  Inst.  279,  when 
speaking  of  witnesses,  he  lays  down  the  maxim  in  its 
terms,  "Allegans  suam  turpitudinem  non  est  audi- 
endus;"  but  only  cites  for  it  a  case  of  Rich,  de  Rayn- 
ham,  in  the  C.  P.  in  13  Edw.  I.  But  in  Collins  v. 
Blantern,  (/>)  in  1767,  which  has  become  a  leading 
case,  ((/)  it  was  held  that,  to  an  action  on  a  bond,  the 
defendant  may  plead  that  it  was  given  by  him  for  an 
illegal  and  corrupt  consideration.  In  Lutterell  v. 
Reynell,  (r)  T.  29,  Car.  II.,  which  was  an  action  ol 
trespass  for  taking  money,  on  its  being  excepted  against 
the  plaintiff's  evidence,  that  if  it  were  true  it  destroyed 
the  plaintiff's  action,  inasmuch  as  it  amounted  to  prove 
the  defendant  guilty  of  felony  ;  it  was,  says  the  reporter, 
"  agreed  that  it  should  not  lie  in  the  mouth  of  the  party 
to  say  that  himself  was  a  thief,  and  therefore  not  guilty 
of  the  trespass."  On  the  trial  of  Titus  Oates  for  per- 
jury, in  1685,  (s)  the  court  rejected  the  testimony  of  a 
person  who  came  to  swear  that  he  had,  by  persuasion 
of  the  defendant,  perjured  himself  on  a  former  occasion  ; 
Lord  Chief  Justice  Jefferies  pronouncing  such  evidence 
to  be  "  very  nauseous  and  fulsome  in  a  court  of  justice." 
So  on  the  trial  of  Elizabeth  Canning  for  perjury,  in 
1754,  (7)  on  the  question  being  raised,  Legge,  B.,  said, 
"  I  believe  witnesses  have  very  often  been  called,  that 
have    declared   they     have    been    perjured    in    other 

(/)  2  Wils.  341.  V)  1  Mod.  2S2. 

(q)  See  that  case  and  the  note  to  it,  (s)  10  Ho.  St.  Tr.  1079,  1185    6. 

1  Smith,  L.  C.  310,  5th  Ed.  (/)  19  Ho.  St.  Tr.  283,  632,  633. 


94o      SECONDARY    RULES    OF    EVIDENCE. 

instances ;  but  I  will  never  admit  or  suffer  a  person 
that  will  say  they  have  been  perjured  in  another  affair, 
and  I  knew  it  before  they  were  sent  for.  When  she 
(7.  e.,  the  witness)  swears  true  I  can  not  tell;  but  that 
she  has  sworn  false  once,  I  must  know."  On  counsel 
observing  that  in  the  case  of  subornation  of  perjury 
such  were  admitted  every  day,  Legge,  B.,  answered 
"  they  are  admitted,  but  it  goes  so  much  to  their  credit." 
The  recorder  (Moreton)  expressed  a  similar  opinion, 
and  referred  to  the  case  of  Titus  Oates.  It  is  very 
difficult  indeed  to  see  a  distinction  in  this  respect 
between  perjury  and  subornation — why  an  avowal  ot 
perjury  on  a  former  occasion,  should  be  an  objection 
to  competency  in  the  one  case,  and  only  to  credit  in 
the  other.  The  maxim  in  question  was  cited  by  Lord 
Mansfield  as  a  maxim  of  the  civil  law,  in  Walton  v 
Shelley,  («)  in  1786,  which  case  was  afterwards  over 
ruled,  (v)  It  has  likewise  been  referred  to  in  some 
other  cases  ;  (w)  but  the  decisions  in  such  of  them  as  can 
be  supported,  would  stand  very  well  without  it — most, 
if  not  all,  proceeding  on  the  unimpeachable  principle; 
that  a  man  shall  not  be  allowed  to  take  advantage  of 
his  own  guilt,  wrong,  or  fraud,  (jit) 

546.  The  modern  authorities  completely  negative 
the  existence  of  any  such  rule,  so  far  as  witnesses  are 
concerned.  It  is  now  undoubted  law  that  a  witness 
although  not  always  bound  to  answer  them,  may  be 
asked  questions  tending  to  criminate,  injure,  or  degrade 
him.  (jj/)  So,  it  is  the  constant  practice  in  criminal 
cases  to  receive  the  evidence  of  accomplices,  who  depose 

(u)  1  T.  R.  296,  300.  hamel,    I    C.    B.    88S,   SS9  ;     Mann   v 

(v)  Jordaine  v.  Lashbrook,  7  T.  R,  Swann,  14  Johns.  269,  273;    U.  S.  T 

601.  Leffier,  n  Peters,  86  &  94. 
(w)  Gibson   v.  Minet,  1   H.  Bl.  569,  (x)  Infra. 

397,  per  Gould,  J.;    Fin-don  v.  Parker,  ( y)  Bk.  2,  pt.  1,  ch.  *. 

7   jurist,  903,  907  ;    Steadman   v.  Du- 


SELF-REGARDING    EVIDENCE.  941 

to  theii  own  guilt  as  well  as  to  that  of  the  accused  ;  and 
it  is  not  even  indispensable,  although  customary  and 
advisable,  that  some  material  part  of  the  story  told  by 
the  accomplice  should  be  corroborated  by  untainted 
evidence,  (z)  The  cases  of  Titus  Oates  and  Elizabeth 
Canning,  the  chief  authorities  in  favor  of  the  maxim, 
were  expressly  overruled  by  the  Court  of  King's 
Bench  in  R.  v.  Teal,  {a)  That  was  a  prosecution 
against  Toomas  Teal,  Hannah  S.,  and  others,  for  con- 
spiring falsely  to  charge  the  prosecutor  with  being 
the  father  of  a  bastard  child  of  Hannah  S.  A  nolle 
prosequi  having  been  entered  as  to  Hannah  S.,  she  was 
examined  as  a  witness  to  prove  that  she  had,  at  the 
instigation  of  the  defendant  Teal,  forsworn  herself  in 
in  deposing  that  the  prosecutor  was  father  of  the 
child.  A  new  trial  being  moved  for  on  the  ground 
that  she  was  an  incompetent  witness,  the  cases  of 
Oates  and  Canning  were  relied  on  :  and  it  was  also 
argued,  that  a  person^vho  admits  himself  to  be  an  in- 
fidel is  disqualified  from  giving  evidence.  The  court, 
however,  took  a  different  view ;  and  Lord  Ellen- 
borough  said  :  "  An  infidel  can  not  admit  the  obliga- 
tion of  an  oath  at  all,  and  can  not  therefore  give 
evidence  under  the  sanction  of  it.  But  though  a 
person  may  be  proved  on  his  own  showing,  or  by  other 
evidence,  to  have  forsworn  himself  as  to  a  particular 
fact,  it  does  not  follow  that  he  can  never  afterwards  feel 
the  obligation  of  an  oath  ;  though  it  may  be  a  good 
reason  for  the  jury,  if  satisfied  that  he  had  sworn 
falsely  on  the  particular  point,  to  discredit  his  evi- 
dence altogether.  But  still  that  would  be  no  war- 
rant for  the  rejection  of  the  evidence  by  the  judge  , 
it    only  goes   to  the  credit  of  the  witness,  on  wbic 

(z)  Bk.  2,  pt.  1,  ch.  2,  §  171.  (a)  n  East,  307. 


942      SECONDARY    RULES     OF    EVIDENCE. 

the  jury  are  to  decide."  In  the  subsequent  case  alsc 
of  Rands  v.  Thomas,  (&)  which  was  an  action  for 
goods  furnished  to  a  ship,  the  plaintiff,  in  order  to 
show  the  defendant  to  be  a  part-owner,  proved  that 
his  name  was  upon  the  register  as  such,  and  also  that, 
after  the  time  when  the  goods  were  furnished,  he  had 
executed  a  bill  of  sale  of  his  share  to  one  Cooke;  on 
whose  oath  the  register  was  obtained,  and  he  was 
stated  in  it  to  be  a  part-owner.  The  defendant  pro- 
posed to  call  Cooke,  to  prove  that  he  had  inserted  the 
.defendant's  name  in  the  register  without  his  privity  or 
consent ;  on  which  it  was  objected,  that  Cooke  could 
not  contradict  the  oath  he  had  taken  at  the  time  of 
the  registry.  Graham,  B.,  acceded  to  this  view,  and 
rejected  the  evidence  ;  but  the  court  set  aside  the 
verdict,  on  the  authority  of  R.  v.  Teal,  holding  that 
the  objection  went  only  to  the  credit  of  the  witness. 
So  it  is  competent  for  a  defendant  who  is  sued  on  a 
contract,  to  plead  and  prove  that,  as  between  him  and 
the  plaintiff,  such  contract  was  illegal  or  immoral  ;  (c) 
but  not  that  it  was  merely  fraudulent,  (d)  For 
although  a  man  may,  in  a  court  of  justice,  acknowl- 
edge his  own  wrong  or  fraud,  it  is  a  principle  of  law 
that  he  shall  not  be  allowed  to  take  advantage  of  it 
(e) — "  Nullus  commodum  capere  potest  de  injuria 
sua  propria.''  (/)  ' 

{b)  5  M.  &  S.  244.  Doe  d.    Bryan   v.    Bancks,  4   Id.    401, 

(c)  Holman   v.  Johnson,  Cowp,  341,  409,  per   Best,  J.;  Daly  v.  Thompson, 

343.  10  M.  &  W.  309  ;    Findon  v   Parker, 

(</)  Jones   v.  Yates,  9   B.  &  C.532,  11    Id.  675,681;    Murray  v.    Mann,  2 

538.  Exch.  538. 

(e)  1  Blackst.  Comm.  443  ;  Co.  Litt.  (/)  Co.  Litt.  14SD  ;   Jenk.  Cent   4, 

148b  ;     2    Inst.    713 ;     Montefiori    v  Cas.  5.     See  Dig    lib.  50,  tit.   17,  L 

Montefiori,    1    W.     1)1.    363 ;     Doe  d.  134. 
Roberts  v.  Roberts,  2   B.  &  A.  367  , 

1  No  one  can  take  advantage  of  his  own  wrong. 


SELF-REGARDING    EVIDENCE.  943 

SECTION   III. 

SELF-DISSERVING    STATEMENTS    IN    CRIMINAL    CASES. 

547.  We  come  lastly  to  self-disserving  statements 
in  criminal  cases ;  or,  as  they  are  most  usually  termed, 
w  <  onfessions."  In  treating  this  subject,  we  propose  to 
consider, 

1.  Estoppels  in  criminal  cases. 

2.  The    admissibility    and    effect    of  extra-judicial 

self-criminative  statements. 

3.  Informative  hypotheses  affecting  self-criminative 

evidence. 

SUB-SECTION    I. 

ESTOPPELS  IN  CRIMINAL  CASES. 

PARAGRAPh 

Estoppel  in  criminal  cases 54S 

1.  Judicial  confession  .........  54-8 

2.  Pleading 549 

3.  Collateral  matters 550 

548.  In  this  branch  of  the  law  there  are,  for  ob- 
viously just  reasons,  few  estoppels.  The  first  and 
most  important  is  the  estoppel  by  judicial  confession. 
It  may  be  taken  as  a  rule  of  universal  jurisprudence, 
that  a  confession  of  guilt,  made  by  an  accused  person 
to  a  judicial  tribunal  having  jurisdiction  to  condemn 
or  acquit  him,  is  sufficient  to  found  a  conviction,  {g) 


(g)  I  Greenl.  Ev.  §  216,7th  Ed.  de  Prob.  Concl.  344,  345;  Aylifie 
Tayl.  Ev.  §  792,  4th  Ed.;  Dig.  lib.  42,  Parerg.  Jur.  Can.  Angl.  545  ;  2  Hagg 
tit.  2  ;    Cod    lib.   7.  tit.   59;    Mascard,      Cons.  Rep.  315  ;   1  Ev.  loth,  g  798. 


944      SECONDARY    RULES     OF    EVIDENCE. 

even  where  it  may  be  followed  by  sentence  of  death ; 
such  confession  being  deliberately  made,  under  the 
deepest  solemnities,1  oftentimes  with  the  advice  of 
counsel,  and  always  under  the  protecting  caution  and 
oversight  of  the  judge.  (A)  '  "  Confessus  in  judicio  pro 
judicato  habetur,  et  quodammodo  sua  sententia  dam- 
natur."  (z)  "  Confessio  facta  in  judicio,  omni  proba- 
tione  major  est."  (/ ) '  "  Confessio  in  judicio,  est  plena 
probatio."  (£)  Still,  if  the  confession  appears  incredi- 
ble, or  any  illegal  inducement  to  confess  has  been 
held  out  to  the  accused,  or  if  he  appears  to  have  any 
object  in  making  a  false  confession,  or  if  the  confes- 
sion appears  to  be  made  under  any  sort  of  delusion, 
or  through  fear  and  simplicity,  (/)  the  court  ought 
not  to  receive  it.  So,  if  the  offense  charged  is  one  of 
the  class  denominated  "  facti  permanentis,"  and  no 
other  indication  of  a  corpus  delicti  can  be  found.  (;;;) 
The  numerous  instances  which  have  occurred  of  the 
falsity  of  confessions,  judicial  as  well  as  extra-judi- 
cial, (n)  traces  of  which  are  visible  very  early  in  our 
legal  history,  (o)  fully  justify  this  course.  In  ordinary 
practice  a  plea  of  guilty  is  never  recorded  by  English 
judges,  at  least  in  serious  cases,  without  first  solemnly 
warning  the  accused,  that  such  plea  will  not  entitle 

(h)  Greenl.  in  loc.  cit.  (/)  Finch's  Law,  29  ;  Ayliffe,  Parerg. 

(/)  11  Co.  35a.     Ace.  Cod.  lib.  7,  tit.  Jur.  Can.  Angl.  545. 
59  ;  Dig.  lib.  42,  tit.  2,  1.  1  ;  Id.  lib.  9,  (m)   See   supra,   ch.  2,  sect.  3,   sub- 
tit.  2,  1.  25,  §  2.  sect.  2,  §  441. 

(/)  Jenk.  Cent.  2,  Cas.  99.  («)  See  infra,  sub-sect.  3. 

(Jt)  Jenk.  Cent.  3,  Cas.  73.  (0)  27  Ass.  pi.  40  ;  22  Ass.  pi.  71. 

1  See  a?ite,  notes,  as  to  Confessions. 

1  A  man  confessing  a  judgment  is  considered  in  the  same 
light  as  if  judgment  had  been  given  against  him,  and,  as  it 
were,  is  condemned  by  his  own  sentence.  A  confession  made 
in  judgment  (or  a  confession  of  a  judgment)  is  superior  to  all 
proof. 


SELF-REGARDING    EVIDENCE.  945 

him  either  to  mercy  or  a  mitigated  sentence,  and 
freely  offering  him  leave  to  retract  it  and  plead  not 
guilty.  (/)  For  it  is  important  to  observe,  that  the 
plea  of  not  guilty  by  an  accused  person,  is  not  to  be 
understood  as  a  moral  asseveration  of  his  innocence 
of  the  offense  with  which  he  is  charged ;  it  means  no 
more  than  he  avails  himself  of  the  undoubted  right 
vested  in  him  by  law,  of  calling  on  the  prosecution  to 
prove  him  guilty  of  that  offense. 

549.  2.  An  accused  person  must  plead  the  differ- 
ent kinds  of  pleas  in  their  regular  order — by  pleading 
in  bar  he  loses  his  right  to  plead  in  abatement,  &c.  {q) 
550.  3.  An  accused  person  may  be  estopped  by 
various  collateral  matter  which  do  not  appear  on  record. 
Thus  he  can  not  challenge  a  juror  after  he  has  been 
sworn,  (V)  unless  it  be  for  cause  arising  afterwards.  (Y) 
If  he  challenges  a  juror  for  cause,  he  must  show  all  his 
causes  together  ;  (7)  and  on  a  trial  for  high  treason,  if  he 
means  to  object  to  a  witness,  that  he  is  misdescribed  in 
the  list  of  witnesses  delivered  under  the  7  Ann.  c.  21, 
and  6  Geo.  4,  c.  50,  he  must  take  the  objection  on  the 
voir  dire;  for  it  comes  too  late  after  the  witness  has 
been  sworn  in  chief,  (u)  In  the  case  of  R.  v.  Frost,  (v) 
which  was  an  indictment  for  high  treason,  where  the 
list  of  witnesses  required  by  those  statutes  was  not 
delivered  in  the  manner  therein  prescribed,  i.  e.,  simul- 
taneously with*  the  copy  of  the  indictment  and  jury 
panel ;  it  was  held,  on  a  case  reserved,  by  nine  judges 
against  six,  that  the  objection  came  too  late,  after 
the  jury  had  been  sworn  and  the  indictment  opened 
to  them. 

(/ )  2  Hale,  P.  C.  225.  (j)  Hob.  235. 

(q)  2   Hale,  P.  C.  175  ;    Cook's  case,  (t)  2  Hale,  P.  C.  274. 

5  Ho  St.  Tr.  1 143.  («)  R.  v.  Frost,  9  C  &  P.  129,  183. 

(r)  2  Hale,  P.  C.  293.  (v)  9  C.  &  P.  162  and  187. 

1  Wharton  (on  Criminal  Law,  §  751a)  makes  four  classes  of 
60 


94^      SECONDARY    RULES     OF    EVIDENCE. 


SUB-SECTION  II. 

THE     ADMISSIBILITY     AND    EFFECT    OF     EXTRA-JUDICIAL 
SELF-CRIMINATIVE    STATEMENTS. 

PARAGRAPH 

Admissibility  of  extra-judicial  self-criminative  statements       ...  551 

Must  be  made  voluntarily,  or  at  least  freely          .         .         .         .  551 

Effect  of  when  received  ..........  era 

Not  conclusive      .....  ceo 

If  believed  sufficient  without  other  evidence 553 

Caution 551 

551.  Self-disserving  evidence  it  not  always  receiv- 
able in  criminal  cases  as  it  is  in  civil.  There  is  this 
condition  precedent  to  its  admissibility,  that  the  party 
agamst  whom  it  is  adduced  must  have  supplied  it 
voluntarily,  or  at  least  freely.  ( It  is  an  established 
principle  of  English  law,  that  every  confession  or 
j  criminative  statement  ought  to  be  rejected,  which  has 
been  extracted  by  physical  torture,  coercion,  or  duress 
of  imprisonment ;  or  which  has  been  made  after  any 
inducement  to  confess  has  been  held  out  to  the 
accused,  by,  or  with  the  sanction,  express  or  implied, 
of  any  person  having  lawful  authority,  judicial  or 
otherwise,  over  the  charge  against  him,  or  over  his 
person  as  connected  with  that  charge.'  But  in  order 
to  have  this  effect,  the  inducement  thus  held  out,  must 
be  in  the  nature  of  a  promise  of  favor  or  threat  of 
punishment :   i.  e.,  it   must  be  calculated  to  convey  to 

estoppels  in  criminal  law,  viz.,  estoppel  by  judgment,  by  con- 
sent, by  laches,  and  by  connivance.  As  a  rule,  the  burden  of 
setting  up  an  estoppel  by  consent,  as  a  defense,  is  on  the  de- 
fendant. Welsh  v.  State,  11  Tex.  368  ;  State  v.  Whittier,  21 
Me.  36S. 


SELF-REGARDING    EVIDENCE.  947 

the  mind  of  the  accused,  that  his  condition  so  fai  as  it 
may  be  affected  by  the  charge  made  against  him,  will  be 
rendered  better  or  worse  by  his  consenting  or  refusing 
to  confess.  If,  therefore,  it  appears  that  the  .accused 
was  urged  to  speak  the  truth  on  moral  grounds 
only,  (x)  the  confession  or  criminative  statement  will 
be  receivable ;  as  it  also  will  be,  when  the  supposed 
influence  of  an  illegal  inducement  to  confess,  may 
fairly  be  presumed  to  have  been  dissipated  before  the 
confession,  by  a  warning  from  a  person  in  authority,  not 
to  pay  any  attention  to  it.  (y)  The  cases  on  the  sub- 
ject of  what  is  an  illegal  inducement  to  confess  are  very 
numerous,  and  far  from  consistent  with  each  other  ;  (z) 
and  there  can  be  little  doubt  that  the  salutary  rule  which 
excludes  confessions  unlawfully  obtained,  has  been  ap- 
plied to  the  rejection  of  many  not  coming  within  its 
principle,  (a)  All  questions  relating  to  the  admissibility 
of  extra-judicial  confessorial  statements  are  of  course  to 
be  decided  by  the  judge.  (Where,  on  a  confession  being 
offered  in  evidence,  it  appeared  that  an  illegal  induce- 
ment to  confess  had  been  held  out,  but  the  answers  of 
the  witnesses  were  confused  and  contradictory,  as  to 
^  whether  that  was  before  or  after  the  confession,  Parke,  B., 
rejected  it ;  saying,  that  the  onus  of  proving  that  the 
confession  was  not  made  in  consequence  of  an  im- 
proper inducement,  lay  on  the  prosecution  ;  and  as  it 
was   impossible  to  collect    from  the  answers  of   the 

(x)  See  R.  v.  Jarvis,  L.    Rep.,  i    C.  (2)  A  large  number  are  collected  in 

C.  96  ,  R     v.  Reeve,  Id.  362  ;  R.  v.  Arch.   Crim.  Plead.  19S  et  seq.,  15th 

Gilham,  1  Mo.  C.  C.  1S6  ;  R.  v.  Wild,  Ed.,  and  Rose.  Crim.  Evld.  39  ei  seq., 

Id.  452.  6th  Ed. 

(>')  The  11   &   12  Vict.  c.  42,  s.  18,  (a)  See  per   Kelly,    L.  C.   1!.   R.  v 

gives  a  form  of  caution,  to  be  given  by  Reeve,    L.  Rep.,    I    C.    C.    362,   363, 

justices  of  the  peace  to  persons  brought  Tayl.  Ev.  §  766,  4th  Ed.  ;  1  Phil.  Ev, 

before    them   charged    with   offenses.  408,  10th  Ed.;  R.  v.  Baldiy,  2  Den.  C 

See  also  18  &  ig  Vict.  c.  126,  s.  3.  C.  430 ;  R.  v.  Moore,  Id.  522. 


943     SECONDARY    RULES     OF    EVIDENCE. 

witness  whether   such  was  the  case  or   not,  the  con- 
fession could  not  be  received.  (U) 

552.  With  respect  to  the  effect  of  extra-judicial 
confessions  or  statements  when  received,  the  rule  is 
clear,  that,  unless  otherwise  directed  by  statute,  no 
such  confession  or  statement,  whether  plenary,  or 
not  plenary,  whether  made  before  a  justice  of  the 
peace,  or  other  tribunal  having  only  an  inquisi- 
torial jurisdiction  in  the  matter  ;  or  made  by  deed,  or 
matter  in  pais  ;  either  amounts  to  an  estoppel,  or  has 
any  conclusive  effect  against  an  accused  person,  or  is 
entitled  to  any  weight  beyond  that  which  the  jury  in 
their  conscience  assign  to  it. 

553.  The  necessity  for  clear  and  unequivocal 
proof  of  a  corpus  delicti,  (/)  joined  to  the  desire  so 
strongly  evinced  by  our  law,  to  protect  parties  from 
being  unfairly  prejudiced  by  false  or  hasty  statements, 
gave  rise  to  the  doubt,  whether  a  conviction  can  be 
supported  on  the  mere  extra-judicial  self-crimina- 
tive statement  of  an  accused  person,  (d)  Modern 
authorities  incline  to  the  affirmative,  (e)  Still  such  a 
principle  should  be  acted  on  with  great  caution ;  for 
the  numerous  cases  in  which  persons  have  wrongly 
accused  themselves,  or  wrongly  acknowledged  them- 
selves guilty  of  crimes,  ought  to  render  tribunals  very 
careful  of  inflicting  punishment,  when  the  only  proof 
of  crime  rests  on  the  statement  of  the  supposed  crimi- 
nal.    On    capital    charges,   and    charges   of    murder 

(P  R.  v.  Warringham,  15  Jur.  31S  ;  v.  Tippet,  Id.  509  ;  R.  v.  Wheeling,  1 

2  Den.  C.  C.  430,  447,  note.  Leach,  C.  L.  311,  note.     In  the  Uni- 

(c)  See  supra,  ch.  2,  sect.  3,  sub.  ted  States  considerable  difference  of 
sect.  2,  S  441.  opinion  seems  to  prevail  on  this  sub- 

(d)  Matth.  de  Prob.  cap.  I,  n.  7  ;  ject.  See  1  Greenf.  Evid.  §  217,  7th 
R.  v.  Eldridge,  R.  &  R.  440;  R.  v.  Ed.;  Wharton,  Americ.  dim.  Law 
White,  Id.  50S.  313.  4d  Ed.  ;  Burrill,  Circ.  Evid.  498. 

{e)  R.v.  Falkner,  R.  &  R.  4S1  ;  R. 


SELF-REGARDING    EVIDENCE.  949 

especially,  a  double  degree  of  caution  is  requisite — 
the  truth  of  the  statement  should  be  carefully  sifted, 
and  every  effort  made  to  obtain  evidence  to  confirm 
or  disprove  the  corpus  delicti.  These  considerations 
apply  with  increased  force  when  a  confession  is  not 
plenary. 1 

'  See  the  learned  and  valuable  treatise  of  Judge  Appleton 
(on  Evidence,  Chapter  XL  ;  Hearsay  Evidence;  and  Confes- 
.ons  or  Admissions  of  the  Party). 


950      SECONDARY    RULES     OF    EVIDENCE. 


SUB-SECTION  III. 

1NBIRMATIVR    HYPOTHESES    AFFECTING    SELF-CRIMI- 
NATIVE    EVIDENCE. 


PARAGRAPH 

InSmi&iive  hypotheses  affecting  self-criminative  evidence      .         .         .  554 

Continental  practice             . 555 

Arguments  in  favor  of  judicial  interrogation 556 

Arguments  against  it 557 

FsJse  seli-criminative  statements             .......  559 

Motives  for,  sometimes  impossible  to  ascertain    ....  559 

Two  classes  of          .                  560 

1°.  Resulting  from  MISTAKE          ......  560 

1.  Of  fact 561 

2.  Of  law 562 

t>° .   in  expectation  of  benefit           ......  563 

I.  To  escaoe  vexation              .         .         .         .    '     ,         ,  563 

2    From  collateial  objects          ......  565 

1.  Relating  to  the  party  himself      .         .         .         .  565 

1.  To  stifle  inquiry  into  other  matters         .         .  565 

2.  Tsedium  vita? 566 

3.  Relation  between  the  sexes     ....  567 

4.  Vanity 568 

5.  Other  instances       ......  569 

2.  When  other  parties  are  involved          .         .         .  570 

1.  Desire  of  benefiting  others       ....  570 

2.  Desire  of  injuring  others      ....  571 

Confessions  of  impossible  offenses    .......  572 

Additional  infirmative   hypotheses  in  extra-judicial   confessorial 

statements      .........  573 

1.  Mendacity 573 

2.  Misinterpretation 573 

3.  Incompleteness    .........  573 

Non-responsion 574 

Evasive  responsion 575 

False  responsion 576 

Legitimate  use  of  cajes  of  false  self-criminative  statements    .         .         .  577 

554.  The  infirmative  hypotheses  affecting  self-cri- 
minative evidence    deserve    the    deepest  and    most 

anxious  attention.     The  professors  of  the  civil  law,  on 
the  revival  of  its  study  in  Europe,  attributed  a  pecu- 


SELF-REG  A  RDING    E  VIDENCE. 


95i 


liar  virtue  to  the  confessions  of  parties.  It  was  pro- 
nounced a  species  of  proof  so  clear,  excellent,  and  tran- 
scendent a  nature,  as  to  admit  of  no  proof  to  the 
contrary.  (/)  In  a  great  degree  connected  with  this 
notion,  was  the  practice  of  torturing  suspected  persons 
to  extract  confessions  ;  (g  ) — which,  to  the  disgrace 
of  the  civil  law  in  all  its  modifications,  (//)  and  like- 
wise of  the  canon  law,  (z)  so  long  prevailed  on  the 
continent.  The  absurdity,  to  say  nothing  of  the  in- 
justice and  cruelty  of  that  practice,  has  been  too  ably 
and  too  frequently  exposed  to  require  notice  here  (k) 


(/)  "  Multum  a  doctoribus  rei  con- 
fessio.  Probatio  ciicitur  liquidissima, 
principalissima,  illustrissima,  adeo  ut 
non  admittat  probationem  in  contrari- 
um."  Matthceus  de  Prob.  cap.  1,  n. 
6.  They  also  called  it  "  probatio  pro- 
battissama."  Bonnier,  Traite  des 
Preuves,  §  241.  It  would  however  be 
most  unjust  to  charge  this  absurdity 
on  the  Roman  law  itself,  which  in  ex- 
press terms  lays  down  :  "  Si  quis  ultro 
de  maleficio  fateatur,  non  semper  ei 
fides  habenda  sit  :  nonnunquam  enim 
aut  metii,  aut  qua  alia  de  cansa  in  se 
confitentur."  Dig.  lib.  ;S,  tit  18.  1.  i, 
£  27,  where  a  strong  instance  of  false 
confession  is  recorded.  So  in  another 
place.  "Si  quis  hominem  vivum  falso 
confiteatur  occidisse,  et  postea  paratus 
sit  ostendere  hominem  vivum  e^se : 
Julianus  scribit,  cessare  Aquiliam ; 
quamvis  confessus  sit  se  occidisse  ; 
hoc  enim  solum  remittere  actori  con- 
fessoriam  actionem,  ne  necesse  habeat 
docere,  eum  occidisse  ;  caeterum  occi- 
sum  esse  hominem  a  quocunque  opor- 
tet."  Dig.  lib.  9,  tit.  2,  1.  23,  s.  n. 
"  Hoc  ape rt ills  est  circa  vulneratum 
hominem  :  nam  si  confessus  sit  vulne- 
rasse,  nee  sit  vulneratus,  aestimationem 
cujus  vulneris  faciemus  ?  vel  ail  quod 
tempus  recurremus?"  Id.  1.  24. 
"  Proinde  si   occisus   quidem  non   sit, 


mortuus  autem  sit,  magis  est,  ut  non 
teneatur  in  mortuo,  licet  fassus  sit." 
Id.  1.  25.  See  also  Dig.  lib.  48,  tit.  18, 
1.  1,  §  17  ;  tit  19, 1.  27  ;  lib.  11,  tit.  1, 
1.  ir,  §§  8  et  seq.  ;  lib.  42,  tit.  2. 
(g)  Bonnier,  Traite  des  Preuves,  § 

647. 

(A)  In  trod.    pt.  2,    §§   69,    70,  note 

(t)  Decrit.  Gratian,  Pars  2,  Causa  5, 
Quaest.  5,  cap.  4  ;  Constit.  Clement, 
lib.  6,  tit.  5,  cap.  1,  §  1. 

(k)  The  civilians  professed  to  found 
all  their  labors  on  the  Roman  law. 
We  have  seen  in  note  (_/)  how 
grievously  they  departed  from  it  in 
one  instance,  and  others  might  be  ad- 
duced. On  the  subject  of  torture  in- 
deed they  copied  their  original  more 
faithfully  ;  and  yet  it  would  be  diffi- 
cult to  find  a  stronger  exposition  of 
the  absurdity  and  danger  of  the  prac- 
tice than  in  the  following  language  of 
the  Digest  itself.  "Qusestioni  fidem 
non  semper,  nee  tamen  nunquam  ha- 
bendam,  Constitutionibus  declarator" 
etenim  res  est  fragilis,  et  periculos ;.  et 
quae  veritatem  fallat.  Nam  plerique 
patientia  sive  duritia  tormentorum  ita 
tormenta  contemnunt,  ut  ex  rirni  eis 
Veritas  nullo  modo  possit  :  alii  tanta, 
sunt  impatientia,  ut  (in)  quovis  mentiri, 
qu.un   pati  tormenta  velint  :  ita  fit   Ut 


952      SECONDARY    RULES     OF    EVIDENCE. 

— its  almost  universal  abandonment  in  our  days  is  per- 
haps its  severest  condemnation.  The  fallacy  also  of 
attributing  a  conclusive  effect  to  confessorial  evidence, 
was  detected  by  the  intelligence  of  the  later  times,  (/) 
and  has  been  abundantly*  confirmed  by  experience. 
Why  must  a  confession  of  guilt  necessarily  be  true  ? 
Because,  it  is  argued,  a  person  can  have  no  object  in 
making  a  false  confessorial  statement,  the  effect  of 
which  will  be  to  interfere  with  his  interest  by  subject- 
ing him  to  disgrace  and  punishment ;  and  consequently 
the  first  law  of  nature — self-preservation — may  be 
trusted  as  a  sufficient  guarantee  for  the  truth  of  any 
such  statement.  This  reasoning  is,  however,  more 
plausible  than  sound.  Conceding  that  every  man  will 
act  as  he  deems  best  for  his  own  interest ;  still  (be- 
sides the  possibility  of  his  misconceiving  facts  or  law), 
he  may  not  only  be  most  completly  mistaken  as  to 
what  constitutes  his  true  interest,  but  it  is  an  obvious 
corollary  from  the  proposition  itself,  that  w'hen  the 
human  mind  is  solicited  by  conflicting  interests  the 
weaker  will  give  place  to  the  stronger :  and  con- 
sequently, that  a  false  confessorial  statement  may  be 
expected,  when  the  party  sees  a  motive  sufficient,  in 
his  judgment,  to  outweigh  the  inconveniences  which 
will  accrue  to  him  from  making  it.  Now,  while  the 
punishment  denounced  by  law  against  offenses  is 
visible  to  all  mankind,  not  only  are  the  motives  which 
induce  a  person  to  avow  delinquency,  confined  to  his 


etiam    vario    modo  fateantur,  ut  non  title,  and  stand  side  by  side  with  the 

tantum  se,  verumetiam  alios  commin-  the  above  passage, 

entur."    Dig.  lib.  48,  tit.  iS,  1.  1,  i;  23.  (/)  The    later    civilians    were    fully 

Notwithstanding  all  this,  the  compilers  sensible  of  this  fallacy.     See  Mascard 

of  the  Digest  retained  the  practice  of  de     I'rob.    Qutert.  7  ;     Matthaeus    de 

torture   in    the    Roman    law,   and   the  Prob.  cap.  1,    nn.  4  and   6  ;    I  Hagg 

ca>es  in  which  it  mighl  be  resorted  to  Cons.  Rep.  304. 
are  carefully  pointed  out  in   the  same 


SELF -REGARDING    EVIDENCE.  953 

own  breast ;  but  those  who  hear  the  confessorial  state- 
ment, often  know  little  or  nothing  of  the  confessional- 
ist,  far  less  of  the  innumerable  links  by  which  he  may 
be  bound  to  others  who  do  not  appear  on  the  judicial 
stage.  The  force  of  these  considerations  will  be  bet- 
ter appreciated,  when  we  come  to  examine  separately 
the  principal  motives  to  false  confessions ;  (111)  but 
first,  as  connected  with  the  whole  subject,  must  be 
noted  a  marked  distinction  between  our  judicature 
and  that  of  most  foreign  nations. 

555.  In  the  mediaeval  tribunals  of  the  civil  and 
canon  laws,  the  inquisitorial  principle  was  essentially 
dominant.  And  this  has  so  far  survived,  that  in  many 
continental  tribunals  at  the  present  day,  every  criminal 
trial  commences  with  a  rigorous  interrogation  of  the 
accused,  by  the  judge  or  other  presiding  officer.  Nor 
is  this  interrogation  usually  conducted  with  fairness 
towards  the  accused.  Facts  are  garbled  or  misrepre- 
sented, questions  assuming  his  guilt  are  not  only  put, 
but  pressed  and  repeated  in  various  shapes  ;  and  hardly 
any  means  are  left  untried  to  compel  him,  either  directly 
or  by  implication,  to  avow  something  to  his  prejudice. 
This  is  no  chimerical  danger.  By  artful  questioning 
and  working  on  their  feelings,  weak-minded  individuals 
can  be  made  to  confess  or  impliedly  admit  almost  any- 
thing ;  and  to  resist  continued  importunities  to  acknowl- 
edge even  falsehood,  requires  a  mind  of  more  than 
average  firmness.  (11)     The  common  law  of   England 

{in)  Infra.  soepe  etiam  confitendum  erat,  ne  frus- 

(k)  Look  at  the  trial,  if  trial  it  can  tra  qusesivisset."     Tacitus,  Anna!,  lib. 

be  called,    of   C.    Silanus    before    the  3,  cap.  67,     A  good  instance  is  to  be 

Emperor    Tiberius.      "  Multa  aggere-  found  in  the  trial  of  the  Due  de   Pras- 

bantur  etiam  insontibus  periculosa     .  lin,  in  1S47,  which,  having  taken  place 

non    temperante    Tiberio  before  the  Chamber  of  Peers,  at   that 

quin    premeret    voce,    vultu,  eo    quod  time  the  highest    tribunal   in    France. 

ipse   creberrime    interrogabat  ;    neque  may  fairly  be  supposed  to   have    been 

refellere    aut    eleudere    dabatur  ;     ac  conducted  with  the  strictest  regularity. 


954     SECONDARY    RULES     OF    EVIDENCE. 

proceeds  in  a  way  quite  the  reverse  of  all  this, — hold- 
ing that  the  onus  of  proving  the  guilt  of  the  accused 
lies  on  the  accuser,  and  that  no  person  is  bound  to 
criminate  himself;  according  to  the  maxim,  "  Nemo 
tenetur  seipsum  prodere."  (o)  It  has  therefore  always 
abstained  from  physical  torture, — "  Cruciatus  legibus 
invisi ; "  (/) — and  taken  great  care,  perhaps  too  great 


The  duke  was  charged  with  the  mur- 
der of  his  wife,  and  the  following  is 
part  of  his  interrogation  by  the  presi- 
dent : 

"  Was  she  (the  deceased)  not 
stretched  upon  the  floor  where  you 
had  struck  her  for  che  last  time?" — 
"  Why  do  you  ask  me  such  a  ques- 
tion ?  " 

Then  follow  these  i/o^stions  and  an- 
swers. 

"You  must  hav<*  experienced  a 
most  distressing  moment  when  you 
saw.  upon  enterin/  your  chamber,  that 
you  were  covered  with  the  blood 
which  you  had  just  shed,  and  which 
you  were  ol/'isTed  to  wash  oft?" — 
"Those  ni-i!.s  of  blood  have  been 
been  altG£jeri>er  misinterpreted.  I  did 
not  wish  tn  aopear  before  my  children 
with  tit'  t>jood  of  their  mother  upon 
me." 

'•  Yov  are  very  wretched  to  have 
commuted  this  crime?"  —  (The  ac- 
cused make-  no  answer,  but  appears 
absorbed.) 

"  Have  you  not  received  bad  advice, 
which  impelled  you  to  this  crime?" — 
"  I  have  r<  ceived  no  advice.  People 
do  not  give  advice  on  such  a  subject." 

"Are  you  not  devoured  witli  re- 
morse, and  would  it  not  be  a  sort 
of  solac  :  to  i  t  to  have  told  the 
truth?" — "Strength  completely  fails 
me  to-day." 

"You  ;ii-  :    talking  of  your 

weakness.  I  have  just  now  asked  you 
to  aii  ,'  or  '  no.'  " — 


"  If   anybody  would  feel   my  pulse,  he 
might  judge  of  my  weakness." 

"  Yet  you  have  had  just  now  suffi- 
cient strength  to  answer  a  great  many 
questions  in  detail.  You  have  not 
wanted  strength  for  that."  (The  ac- 
cused makes  no  reply.) 

"  Your  silence  answers  for  you  that 
you  are  guilty." — "  You  have  come 
here  with  a  conviction  that  I  am 
guilty,  and  I  can  not  change  it." 

"  You  can  change  it  if  you  give  us 
any  reason  to  believe  the  contrary  ;  if 
you  will  give  any  explanation  of  ap- 
pearances  that  are  inexplicable  upon 
any  other  supposition  than  that  of 
your  guilt." — "  I  do  not  believe  I  can 
change  that  conviction  on  your 
mind." 

"  Why  do  you  believe  that  you  can 
not  change  that  conviction?" — (The 
accused,  after  a  short  silence,  said  that 
he  had  not  strength  to  continue.) 

"  When  you  committed  this  frightful 
crime  did  you  think  of  your  children?" 
— "  As  to  the  crime,  I  have  not  com- 
mitted it  ;  as  to  my  children,  they  are 
the  subject  of  my  constant  thoughts." 

"  Do  you  venture  to  affirm  that  you 
have  not  committed  this  crime?" — ■ 
(The  accused,  putting  his  head  be- 
tween his  hands,  remained  silent  for 
some  moments,  and  then  said)  "I  can 
not  answer  such  a  question."  (il  Jur. 
365,  Part  2.) 

50.     See   also   14  &    15 
Vict.  c.  g  1.  >.  3. 

(/  .   ML  434.     Whenever    tor 


SELF-REGARDING    EVIDENCE.  955 

care,  to  prevent  suspected  persons  from  being  terri- 
fied, coaxed,  cajoled,  or  entrapped  into  criminative 
statements;  {g)  and  it  not  only  prohibits  judicial  in- 
terrogation in  the  first  instance,  but  if  the  evidence 
against  the  accused  fails  inN  establishing  a  prima  facie 
case  against  him,  it  will  not  even  call  on  him  for  his 
defense.  As,  however,  the  introduction  of  judicial  in- 
terrogation into  this  country,  has  been  warmly  advo- 
cated by  able  jurists,  (V)  we  propose  to  examine 
briefly  the  claims  of  the  conflicting  systems. 

556.  In  favor  of  judicial  interrogation  it  is  argued, 
first,  that  it  is  the  duty  of  courts  of  justice  to  use  all 
available  means  to  get  at  the  truth  of  the  matters  in 
question  before  them  ;  and  as  the  accused  must  neces- 
sarily best  know  his  own  guilt  or  innocence,  he  is 
naturally  the  fittest  person  to  be  interrogated  on  that 
subject  ;  and  indeed  that  in  many  cases,  often  of  the 
most  serious  nature,  it  would  be  impossible,  without 
his  own  testimony,  to  prove  crime  against  the  accused. 
Secondly,  that  the  rule  which  excuses  a  man  from 
criminating  himself,  is  a  protection  to  none  but  the 
evil-disposed ;  for  not  only  have  innocent  persons 
nothing  to  dread  from  interrogation,  however  severe 
but  the  more  closely  the  interrogation  is  followed  up, 
the    more   their    innocence    will    become    apparent. 

ture  has  been  applied   in   England.it  {q)  See  supra,  sub-sect.  2,  §  551.  We 

was  in  virtue  of  some  real  or  imagin-  speak  of  the  ordinary  practice   of  our 

ary  prerogative  of  the  crown  ;    for  it  tribunals  ;    not   of   the   state   trials  of 

could  not  be  awarded  in  the   ordinary  former  times,  where  every  rule  seems 

1 1  hi  1  se  of  law.  The  "  peine,  or  prisone,  to  have  been  reversed, 

forte  et  dure "  may  seem  an  exception  (/')   Particularly    Bentham.     See  his 

to  this,  but  in  truth  is  not ;  for  the  ob-  Judicial   Evidence,    Book  2,   chap.  9 

ject  of  it  was  to  compel  the  accused  to  Book    5,    chap.    7  ;     Book    g,    part    4, 

plead,  i.e.,  say  whether  he  was   guilty  chaps,  2,  3,  4  ;  and  part  5,  chap.  3,  &c. 

or  not,  in  order  that   the  court   might  See    also    a    paper    by    Mr.    Fitzjames 

know  whether  they  ought  to  proceed  Stephen  ;       Papers    of    the    Juridical 

to  sentence,  or  empannel  a  jury  to  try  Society,  vol.  i.  p.  456. 
him. 


956     SECONDARY    RULES     OF    EVIDENCE. 

And,  lastly,  that  in  declining  to  extract  seif-disserving 
statements  from  the  accused  himself,  while  it  receives 
without  scruple  from  the  mouths  of  witnesses,  similar 
statements  which  he  has  made  to  them,  the  English 
law  violates  its  own  fundamental  rule,  which  requires 
the  best  evidence  to  be  given. 

557.  Before  considering  what  may  be  directly 
urged  on  the  other  side,  it  is  essential  to  point  atten- 
tion to  an  important  circumstance  commonly  lost 
sight  of.  In  the  English  system,  as  in  every  other, 
the  indictment,  information,  act  of  accusation,  or 
whatever  else  it  may  be  called,  is  a  general  interroga- 
tion of  the  accused  to  answer  the  matters  charged  • 
and  every  material  piece  of  evidence  adduced  against 
him  is  a  question  to  him,  whereby  he  is  required 
either  to  prove  that  the  fact  deposed  to  is  false, 
or  explain  it  consistently  with  his  innocence.  Any 
evidence  or  explanation  he  can  give  is  not  only  re- 
ceivable, but  anxiously  looked  for  by  the  court  and 
jury;  and,  in  practice,  his  non-explanation  of  appar- 
ently criminating  circumstances,  always  tells  most 
strongly  against  a  prisoner.  What  our  law  prohibits 
is  the  special  interrogation  of  the  accused — the  con- 
verting him,  whether  willing  or  not,  into  a  witness 
against  himself;  assuming  his  guilt  before  proof,  and 
subjecting  him  to  an  interrogation  conducted  on  that 
hypothesis.  And  here  a  question  naturally  presents 
itself — supposing  the  interrogation  of  accused  persons 
advisable,  by  whom  is  it  to  be  performed  ?  There 
seem  but  two  alternatives — the  accuser  or  the  court ; 
and,  if  the  extraction  of  truth  be* the  sole  object  in 
view,  why  is  not  the  accused  to  be  interrogated  on 
oath  like  other  witnesses?  But  this  and  the  subject- 
ing the  accused  to  the  interrogation  of  the  accuser, 
although  sometimes  advocated,  is  not  the  continental 


SELF-REGARDING    EVIDENCE.  957 

practice,  where  the  interrogation  of  the  accused  is  the 
act  of  the  tribunal.  And  here  a  difficulty  presents 
itself  at  the  outset — how  is  an  abuse  of  power  in  this 
respect  to  be  rectified  ?  Improper  questions  put  to  a 
witness  by  a  party  or  his  counsel,  may  be  objected  to 
by  the  other  side,  and  the  judge  determines  whether 
the  objection  is  well  founded.  But  when  the  judge 
is  the  delinquent  who  is  to  call  him  to  order?  De- 
cency and  the  rules  of  practice  alike  prohibit  counsel 
from  taking  exception  to  questions  put  by  the  bench  ; 
and,  indeed,  the  doing  so  would  be  appealing  to  a  man 
against  himself. 

558.  But  to  test  this  important  question  by 
broader  principles.  First,  then,  the  functions  of 
tribunals  appointed  to  determine  causes  are  primarily 
and  essentially  judicial,  not  inquisitorial.  The  tribu- 
nal is  to  judge  and  decide  ;  to  supply  the  proofs — the 
materials  for  decision — belongs  in  general  to  the  liti- 
gant parties :  though  the  inquisitorial  principle  is 
recognized  thus  far,  that  the  tribunal  is  empowered  to 
extract  facts  from  the  instruments  of  evidence  ad- 
duced, and  in  some  cases  to  compel  the  production  of 
others  which  have  been  withheld.  In  the  next  place, 
the  proposition  that  it  is  the  duty  of  courts  of  justice, 
to  use  all  available  means  to  get  at  the  truth  of  the 
matters  in  question  before  them,  must  be  understoo 
with  these  limitations ;  first,  that  those  means  be  such 
as  are  likely  to  extract  the  truth  in  the  majority  of 
cases  ;  and,  secondly,  that  they  be  not  such  as  would 
give  birth  to  collateral  evils,  outweighing  the  benefit 
of  any  truth  they  might  extract,  (s)  Admitting, 
therefore,  that  the  special  interrogation  of  accused  per- 
sons might  in  some  cases  extract  truth  which  otherwise 

(s)  See  lntrod.  pt.  2. 


953      SECONDARY    RULES     OF    EVIDENCE. 

wou.d  remain  undiscovered  (indeed  the  same  may 
be  said  of  torture,  duress  of  imprisonment,  or  any 
other  violent  means  adopted  to  compel  confession)  ; 
the  law  is  fully  justified  in  rejecting  the  use  of  such 
an  engine,  if  on  the  whole  prejudicial  to  the  adminis- 
tration of  justice.  Now  that  sort  of  interrogation, 
even  when  conducted  with  the  most  honest  intention, 
must,  in  order  to  be  effective,  assume  the  shape  of 
cross-examination,  and  consequently  involve  the  judge 
in  an  intellectual  contest  with  the  accused, — a  contest 
unseemly  in  itself,  dangerous  to  the  impartiality  of  the 
judge,  and  calculated  to  detract  from  the  moral  weight 
of  the  condemnation  of  the  accused,  though  ever  so 
guilty.  In  gladiatorial  conflicts  of  this  kind,  the 
practiced  criminal  has  a  much  better  chance  of  victory 
than  an  innocent  person,  embarrassed  by  the  novelty 
and  peril  of  his  situation ;  whose  honesty  would 
probably  prevent  his  attempting  a  suppression  of  truth, 
however  much  to  his  prejudice ;  and  whose  inexperi- 
ence in  the  ways  of  crime,  were  he  in  a  moment  of 
terror  to  resort  to  it,  would  insure  his  detection  and 
ruin.  But  where  the  judge  is  dishonest  or  pre- 
judiced, the  danger  increases  immeasurably.  The 
screw  afforded  by  judicial  interrogation,  would 
then  supply  a  ready  mode  of  compelling  obnoxious 
per.ons,  under  penalty  of  condemnation  for  silence, 
to  disclose  their  most  private  affairs ;  and  corrupt  gov- 
ernments would  be  induced,  in  order  to  get  at  the 
secrets  of  political  enemies,  or  sweep  them  away  by 
penal  condemnation,  to  place  unprincipled  men  on  the 
bench,  thus  polluting  justice  at  its  source.  In  short, 
Judicial  interrogation,  however  plausible  in  theory, 
would  be  found  in  practice  a  moral  torture  ;  scarcely 
Jess   dangerous   than  the    physical  torture  of  former 


SELF-REGARD  I XG     EVIDENCE.  959 

times,  and,  like  it,  unworthy  of  a  place  in  the  jurispru- 
dence of  an  enlightened  country. 

559.  To  return  to  the  subject  of  false  self-crimina- 
tive statements.  It  is  sometimes  impossible  to  ascer- 
tain the  motive  which  has  led  to  a  confession  indis- 
putably false.  In  November,  1580,  a  man  was  con- 
victed and  executed  on  his  own  confession,  for  the 
murder,  near  Paris,  of  a  widow  who  was  missing  at  the 
time,  but  who  two  years  afterwards  returned  to  her 
home.  (t)  And  the  celebrated  case  of  Joan  Parry 
and  her  two  sons, — who  were  executed  in  this  coun- 
try in  the  seventeenth  century,  for  the  murder  of  a 
man  named  Harrison,  who  reappeared  some  years 
afterwards, — affords  another  instance.  That  conviction 
proceeded  chiefly  on  the  confession  of  one  of  the 
accused ;  whether  the  result  of  insanity,  fear,  improper 
inducements    to    confess,   or   the    desire    of    revenge 

gainst    his    fellow-prisoner,    it    is    difficult    to    deter- 
mine, (u) 

560.  All  false  self-criminative  statements  are  divi- 
sible into  two  classes — those  which  are  the  result  of 
mistake  on  the  part  of  the  confessionalist,  and  those 
which  are  made  by  him  in  expectation  of  benefit. 
And  the  former  are  two-fold — mistakes  of  fact  and 
mistakes  of  law. 

561.  First,  of  mistakes  of  fact.  A  man  may  be- 
lieve himself  guilty  of  a  crime,  either  when  none  has 
been  committed,  or  where  a  crime  has  been  com- 
mitted, but  by  another  person.  Mental  aberration  is 
the  obvious  origin  of  many  such  confessions.  But  the 
actors  in  a  tragedy  may  be  deceived  by  surrounding 

(t)  Bonnier,   Traite  des  Preuves,  §  the  false  confession  by  John  Sharpe  of 

256.    This  seems  the  case  referred  to  the  murder  of  Catharine  Elmes,  Ann 

in  Matthaeus  de  Probat.   cap.  i,  n.  4.  Reg.  for  1833,  Chron.  74. 

(u)  14  Ho.  St.  Tr.   1 3 12.     See  also 


960     SECONDARY    RULES    OF    EVIDENCE. 

circumstances,  as  well  as  the  spectators.  A  case  has 
been  cited  in  a  former  part  of  this  work,  (x)  where  a 
girl  died  in  convulsions,  while  her  father  was  in  the 
act  of  chastising  her  very  severely  for  theft,  and  he 
fully  believed  that  she  died  of  the  beating;  but  it 
afterwards  turned  out  that  she  had  taken  poison  on 
finding  her  crime  detected.  If  the  surgeon  had  not 
made  a  post-mortem  examination,  that  man  would 
have  been  indicted  for  homicide,  and  most  probably 
would  have  pleaded  guilty  to  manslaughter  at  least. 
Instances  frequently  occur,  where  death  from  previously 
existing  disease,  follows  shortly  after  the  unjustifiable 
infliction  of  wounds  or  blows,  believed  by  the  guilty 
party  to  have  been  fatal,  (jk)  So,  a  man  may  mis- 
take for  a  robber,  a  corpse  which  has  been  secretly 
conveyed  into  his  chamber,  may  inflict  blows  or 
wounds  on  it,  and  discovering  the  mistake,  consider 
himself  guilty  of  homicide.  (Y)  A  habitual  thief  may, 
by  confounding  one  of  his  exploits  with  another, 
suppose  and  admit  himself  guilty  of  an  offense  in 
which  he  really  bore  no  part ;  (a)  although  it  must  be 
acknowledged,  that  justice  is  not  likely  to  suffer  much 
from  this.  Under  the  present  head  may  be  classed 
some  of  the  confessions  of  witchcraft  that  will  be 
noticed  presently,  (b) 

562.  2.  Next,  as  to  mistakes  of  law.  It  should 
never  be  forgotten  that  all  confessions  avowing  delin 
quency  in  general  terms  are,  more  or  less,  confessiones 
juris;  and  this  will  in  a  great  degree  explain,  what  to 
unreflecting  minds  seems  so  anomalous,  the  caution 
exercised  by  British   judges    in    receiving  a   plea  of 

(x)  Supra,  en.  2,  §  447;  Beck's  Med.  back    in    the    Arabian  Nights'  Enter* 

Jur.  766.  tainments. 

(/)  Sec  Taylor's  Med.  Jur.  chap.  29,  [a)  3  Hcnth.  Jud   Ev.  157,  158. 

7th  Ed.  (b)  Infra. 

(2)  Seethe  story  of  the  Little  Hunch- 


SELF-REGARDING    EVIDENCE.  96  r 

guilty.  (V)  The  same  observation  of  course  applies  to 
all  extra-judicial  statements  which  are  not  mere  rela- 
tions of  facts.  And  here  one  great  cause  of  error  is 
ignorance  of  the  meaning  of  forensic  terms  ;(V)  espe- 
cially where  the  accused,  concious  of  moral,  is  unaware 
that  he  has  not  incurred  legal  guilt.  Thus,  a  man 
really  guilty  of  fraud  or  larceny,  might  plead  guilty  to 
a  charge  of  robbery,  through  ignorance  that,  in  legal 
signification,  the  latter  means  a  taking  of  property  ac- 
companied with  violence  to  the  person,  though  it  is 
popularly  used  to  designate  any  act  of  barefaced  dis- 
honesty. This  is  a  mistake  which  formerly  might  have 
cost  a  man  his  life :  and  to  this  hour  a  person  really 
guilty  of  manslaughter  might,  through  ignorance,  plead 
guilty  of  the  capital  offense  of  murder.  Again,  the 
distinction  between  larceny  and  aggravated  trespass  is 
sometimes  very  slight;  so  that  an  ignorant  man,  con- 
scious that  he  can  not  defend  his  right  to  property  which 
he  has  taken,  might  plead  guilty  to  a  charge  of  larceny, 
where  there  had  been  no  animus  furandi. 

563.  In  the  other  class  of  false  self-criminative 
statements,  the  statement  is  known  by  the  confes- 
sionalist  to  be  false,  and  is  made  in  expectation  of  some 
real  or  supposed  benefit.  It  is  obviously  impossible  to 
enumerate  the  motives  which  may  sway  the  minds  of 
men  to  make  false  statements  of  this  kind,  (e)  First, 
many  are  made  for  ease,  and  to  avoid  vexation  arising 
out  of  the  charge ;  and  in  some  of  these  cases  the 
cause  of  the  false  statement  is  apparent,  viz.,  when  it  is 

(c)  Supra,  sub-sect.  T,  £  548.  quest,  by  which  it  was  found  that  she 

{d)  27  Ass.  pi.  40.     A   woman    was  did    it    by   coercion    of    her    husband 

arraigned  for  having  feloniously  stolen  agiinst  her  will,  whereupon   she  went 

some  bread  :  who  said  that  she  did  it  quit,  &c. 

by  command  of  her  husband.    And  the  (e)  See    Benth.    Jud.    Ev.    Book    S 

justices  through  pity  would    not    take  chap.  6,  sects.  2  and  3. 

her  acknowledgment,  but  *ook  the  en- 
61 


962     SECONDARY    RULES     OF    EVIDENCE. 

made  to  escape  torture,  either  physical  or  moral.  (_/") 
In  others,  it  is  less  obvious.  Weak  or  timorous  per- 
sons, confounded  at  finding  themselves  in  the  power  of 
the  law  ;  or  alarmed  at  the  testimony  of  false  witnesses, 
or  the  circumstantial  evidence  against  them ;  or  dis- 
trustful of  the  honesty  or  capacity  of  their  judges 
hope  by  an  avowal  of  guilt  to  obtain  leniency  at 
their  hands,  '(g) 

564.   Moreover,  an  innocent  man,  accused  or  sus- 
pected of  a  crime,  may  deem  himself  exposed  to  an- 


f)  See  supra,  §§  554  ct  seq. 
(g)  A  striking  instance  of  this  is 
afforded  by  the  case  of  the  two  Dooms, 
who  wen:  convicted  in  the  Supreme 
Court  of  Vermont,  in  Bennington 
County,  in  September  term,  1S19,  of 
the  murder  of  Russell  Colvin,  May  10th 
1812.  It  appeared  that  Colvin  who  was 
the  brother-in-law  of  the  prisoners, 
was  a  person  of  a  weak  and  not  per- 
fectly sound  mind  ;  that  he  was  con- 
sidered burdensome  to  the  family  of 
the  prisoners,  who  were  obliged  to 
support  him  ;  that  on  the  day  of  his 
disappearance,  being  in  a  distant  field, 
where  the  prisoners  were  at  work,  a 
violent  quarrel  broke  out  between 
them  ;  and  that  one'  of  them  struck 
him  a  severe  blow  on  the  back  of  the 
head  with  a  club,  which  felled  him  to 
the  ground.  Some  suspicions  arose  at 
that  time,  that  he  had  been  murdered  ; 
which  were  increased  by  the  finding  of 
his  hat  in  the  same  field  a  few  months 
afterwards.  These  suspicions  in  pro- 
cess of  time  subsided;  but,  in  1819, 
<>ne  of  the-  neighbors  having  repeatedly 
dreamed  of  the  minder,  with  great 
minuteness  of  circumstance,  both  in 
regard  to  the-  death  and  the  conceal- 
nent  of  the  remains,  the  prisoners 
were  vehemently  accused,  and  gener- 
ally believed  guilty  of  the  murder. 
Upon  strict  search,  the    pocket    knife 


of  Colvin,  and  a  button  of  his  clothes, 
were  found  in  an  old  open  cellar  in 
the  same  field,  and  in  a  hollow  stump, 
not  many  rods  from  it,  were  discovered 
two  nails  and  a  number  of  bones,  be- 
lieved to  be  those  of  a  man.  Upon 
this  evidence,  together  with  their  de- 
liberate confes  ion  if  the  fact  of  the 
murder  and  concealment  of  the  body 
in  those  places,  they  were  convicted 
and  sentenced  to  die  On  the  same 
day  they  applied  to  the  legislature  for 
a'commutation  of  the  sentence  of 
death  to  that  of  perpetual  imprison- 
ment ;  winch,  as  to  one  of  them  only, 
was  granted.  The  confession  being 
now  withdrawn  and  contradicted,  and 
a  reward  offered  for  the  discovery  of 
the  missing  man,  he  was  found  in 
New  Jersey,  and  returned  home  in 
time  to  prevent  the  execution.  He 
had  fled  for  fear  that  they  would  kill 
him.  The  bones  were  those  of  some 
animal.  They  had  been  advised,  by 
some  misjudging  friends,  that  as  they 
would  certainly  be  convicted  upon  the 
circumstances  proved,  their  only 
chance  for  life  was  by  commutation  of 
punishment,  and  that  this  depended 
on  their  making  a  penitential  confes 
sion,  and  thereupon  obtaining  a  reco- 
mendation  to  mercy.  I  Greenl.  Ev  § 
214,  note  (2),  7th  Ed. 


SELF-REGARDING    EVIDENCE.  963 

noyance  at  the  hands  of  some  person,  to  whom  his 
suffering  as  for  that  crime  would  be  acceptable.  (Ji) 
To  this  class  belong  those  cases,  where  the  evidence 
necessary  to  establish  the  innocence  of  the  confes- 
sionalist,  would  be  the  means  of  disclosing  transactions 
which  it  was  the  interest  of  many  to  conceal ;  or 
would  bring  before  the  world,  in  the  character  of  a 
criminal,  some  eminent  individual,  whose  reward  for  a 
false  acknowledgment  of  guilt  would  be  great,  and 
whose  vengeance  for  exposure  might  be  terrible. 
Under  circumstances  like  these,  the  accused  is  induced 
by  threats  or  bribes  to  suppress  his  defense,  and  own 
himself  the  author  of  the  crime  imputed  to  him. 

565.  But  false  self-criminative  statements  also 
arise  from  objects  wholly  collateral,  relating  either  to 
the  party  himself  or  to  others.  1.  With  respect  to  the 
first  of  these.  1.  A  false  confession  of  an  offense, 
may  be  made  with  the  view  of  stifling  inquiry  into 
other  matters,  as  for  instance,  some  more  serious 
offense  of  which  the  confessionalist  is  as  yet  unsus- 
pected, (z) 

566.  2.  The  most  fantastic  shape  of  this  anomaly, 
springs  from  the  state  of  mental  unsoundness  which  is 
known  by  the  name  of  taedium  vitas,  (/e)  Several  in- 
stances are  to  be  found,  where  persons  tired  of  life 
have  falsely  accused  themselves  of  capital  crimes, 
which  were  either  purely  fictitious,  or  were  committed 
by  others.  (/)     In  such  cases  the  maxim  of  the  con- 

(/z)  3  Benth.  Jud.  Ev.  124.  having    occasioned    the    great    fire    of 

(i)  Id.  London    in    1666;    "although,"    adds 

(k)  See    Bacon's    Essay   on    Death  ;  the  historian,  "  neither  the  judges  nor 

Dig.  lib.  29,  tit.  5,  1.   r,  §  23  ;  Matth.  any   present   at    the    trial  did    believe 

de  Crimin.  ad  lib.  48  Dig.  tit.  16.  cap.  him  guilty,  but  that  he  was  a  poor  dis- 

I,  n    2.  traded     wretch,  weary    of    life,    and 

(/)  A   Frenchman     named     Hubert  chose    to   part   with    it   in   that    way." 

was    convicted,    and    executed,    on    a  Continuation    of     Lord     Clarendon't 

most  circumstantial  confession   of  Ins  Life,  352,  353. 


964      SECONDARY    RULES    OF    EVIDENCE. 

tinental  lawyers,  "  nemo    auditur  perire  volens,"  (w) 
may  be  applied  with  advantage. 

567.  3.  "  In  the  relation  between  the  sexes,"  says 
Bentham,  when  treating  of  the  subject  of  false  confes- 
sions, {it)  "  may  be  found  the  source  of  the  most  natural 
exemplifications  of  this,  as  of  so  many  other  eccentric 
flights.  The  female  unmarried — punishment  as  for 
seduction  hazarded,  the  imputation  invited  and  sub 
mitted  to,  for  the  purpose  of  keeping  off  rivals,  and 
reconciling  parents  to  the  alliance.  The  female  mar- 
ried— the  like  imputation,  even  though  unmerited, 
invited  with  a  view  to  marriage,  through  divorce." 
And  so  sensible  was  the  canon  law  of  this  country  of 
the  danger  of  false  confessions  from  this  source,  that, 
as  we  have  seen,  it  would  not  allow  adultery  to  be 
proved  (at  least  for  the  purpose  of  divorce  a  vinculo 
matrimonii),  by  the  unsupported  confession,  judicial 
or  extra-judicial,  of  the  wife.  (0) 

568.  4.  "  Vanity,"  observes  the  jurist  above 
quoted,  (/)  "  without  the  aid  of  any  other  motive,  has 
been  known  (the  force  of  the  moral  sanction  being  in 
these  cases  divided  against  itself)  to  afford  an  interest, 
strong  enough  to  engage  a  man  to  sink  himself  in  the 
good  opinion  of  one  part  of  mankind,  under  the  notion 
of  raising  himself  in  that  of  another.  False  confes- 
sions, from  the  same  motive,  are  equally. within  the 
range  of  possibility,  in  regard  to  all  acts  regarded  in 
opposite  points  of  view  by  persons  of  different  descrip- 
tions.    I  insulted  such  or   such  a  man :  I  wrote  such 


(in)  Bonnier,    Traite    des    Preuves,  Canons  of  1597,  cap.  6,  and  of  1604, 

§§      256      and      257 :     D'Aguesseau  cap.   105.     Also  the  judgment  of  Sir 

(CEuvres),    torn.  4,  p.   186 ;  5   Causes  William  Scott  in   Mortimer  v.  Morti- 

Celebres,  454,  Ed.  Richer;  Matth.  in  mer,  2    Hagg.  Cons.  Rep.  316;   Gibs, 

loc.  cit.  Cod.  Jur.   Eccl.  Angl,  tit.  22,  cap.  17 

(n)  3  Benth.  Jud.  Ev.  116,  117.  and  Ought.  Ordo  Jud.  tit.  213. 

(p)  Supra,    %    441.      And     see    the  (/)  3  Benth.  Jud.  Ev.  117-18. 


SELF-REGARDING    EVIDENCE.  965 

or  such  a  party  pamphlet,  regarded  by  the  ruling  part? 
as  a  libel,  by  mine  as  a  meritorious  exertion  in  the 
cause  of  truth  :  I  wrote  such  or  such  a  religious  tract, 
defending  opinions  regarded  as  heretical  by  the 
Established  Church,  regarded  as  orthodox  by  my 
sect."  "  Ouam  multi,"  says  one  of  the  ablest  of  the 
later  civilians,  (q)  "  sunt  gloriosi  militis  similes,  qui 
triginta  Sardos,  sexaginta  Macedones,  centum  Cilices 
uno  die  occidisse  se  gloriantur,  atque  etiam  elphanto 
in  India  pugno  perfregisse  femur;  quos  poena  potius 
quam  commiseratione  dignos  dixerit  nemo."  False 
statements  of  this  kind  are  sometimes  the  offspring  of 
a  morbid  love  of  notoriety  at  any  price.  The  motive 
that  induced  the  adventurous  youth  to  burn  the 
temple  of  Ephesus,  would  surely  have  been  strong 
enough  to  induce  him  to  declare  himself,  however 
innocent,  the  author  of  the  mischief,  had  it  occurred 
accidentally. 

569.  5.  Several  other  instances  may  be  found,  of 
false  confessions  made  with  a  view  to  some  specific 
collateral  end.  (r)  The  Amalekite  who  falsely  ac- 
cused himself  of  having  slain  Saul,  presents  an  early 
and  authentic  instance,  (s)  Soldiers  engaged  on  for- 
eign service,  not  unfrequently  declare  themselves  guilty 
of  having  committed  crimes  at  home,  in  order  that, 
by  being  sent  back  to  take  their  trial,  they  may  escape 
from  military  duty.  (/)  Formerly,  when  transporta- 
tion was  looked  upon  by  many  of  the  lower  orders  as 
a  boon  rather  than  a  punishment,  offenses  were 
occasionally  committed  in  the  hope  of  procuring  the 

{q)  Matth.  de  Crimin.  ad  lib.  48,  Dig.  cide.     Dig.  lib.  48,  tit.  iS,  1.  1,  §  27 
tit.  16,  cap.  I,  n.  3.  (s)  2  Sam.  I. 

(r)  Under  this  head  comes  the  cele-  (/)  False  confessions  of  desertion  are 

brated    case   of  the   slave    Primitivus,  so  common,  that  a  special   clause  (s. 

who,  to  escape  from  his  master,  falsely  38)  respecting  them  is  inserted  in  th« 

accused  himself  and  others   of  homo-  annual  mutiny  acts. 


966     SECONDARY    RULES    OF    EVIDENCE. 

supposed  benefit ;  and  it  is  not  improbable  that  false 
confessions  of  offenses  which  had  been  really  com- 
mitted by  others,  were  made  with  the  same  object. 

570.  2.  Hitherto  we  have  been  considering  cases 
where  the  false  confession  is  made  with  the  view  of 
benefiting  the  confessionalist  himself.  We  now  pro- 
ceed to  those  in  which  other  parties  are  involved.  1 
The  strongest  illustrations  of  this,  are  where  the  per- 
son who  makes  the  false  confession  is  desirous  of 
benefiting  others ;  as,  for  instance,  to  save  the  life, 
fortune,  or  reputation  of,  or  to  avert  suffering  from  a 
party  whose  interests  are  dearer  to  him  than  his  own. 
(it)  The  less  exalted  motive  of  getting  money,  has 
sometimes  had  the  same  effect,  (x) 


(w)  A  singular. .istance  of  this  is  said 
to  have  taken  place  at  Nuremberg,  in 
17S7,  where  two  women  in  great  dis- 
tress, in  order  to  obtain  for  the  chil- 
dren of  one  of  them  the  provisions  se- 
cured to  orphans  by  the  law  of  that 
country,  falsely  charged  themselves 
with  a  capital  crime.  They  were  con- 
victed ;  and  one  was  executed,  but  the 
other  died  on  the  scaffold,  through  ex- 
citement and  grief  at  witnessing  the 
death  of  her  friend.  Case  of  .Maria 
Schoning  and  Anna  Harlin,  Causes 
Celebres  Etrangeres,  vol.  1,  p.  200, 
Paris,  1827.  A  case  is  also  mentioned 
where,  after  a  serious  robbery  had 
been  committed,  a  man  drew  suspi- 
cion of  it  on  himself,  and  when  exam- 
ined before  a  magistrate  droppedhints 
amounting  to  a  constructive  admission 
of  his  guilt ;  in  order  that  his  brothers, 
who  were  the  real  criminals,  might 
have  time  to  escape  ;  and  afterwards 
on  his  trial,  the  previous  object  having 
been  attained,  proved  himself  innocent 
by  a  complete  alibi.  1  Chit.  Crim. 
Law,  8t.  It  is  well  known  that  per- 
sons have  sometimes  de-troved   them- 


selves with  the  view  of  benefiting  their 
families. 

(.r)  "  On  assure  qu'en  Chine  il  y  a 
des  personnes  qui  avouent  pour  autrui 
des  debts  legers,  arm  de  subir  la  puni- 
tion  an  lieu  et  place  du  veritable 
coupable,  qui  les  indemnise  ensuite 
largement."  Bonnier,  Traite  des 
Preuves,  £  256:  no  authority  cited.  A 
modern  traveler  also,  speaking  of 
China,  says,  "  Persons  condemned  to 
death  may  procure  a  substitute,  who 
can  be  found  on  payment  of  a  sum  of 
money."  Berncastle's  Voyage  to  China, 
vol.  2,  p.  167.  See  Norton,  Evid.  115  ; 
Goodeve,  Evid.  573,  ad  id.  We  give 
these  extraordinary  statements  as  we 
find  them. 

After  the  publication  of  the  third 
edition,  the  author  received  a  letter  on 
this  subject  from  Mr.  T.  T.  Meadows, 
British  Consul  at  Newchwang,  North- 
ern China,  in  which  he  says,  "  I  feel 
desirous  of  removing  adoubt  expressed 
at  the  end  of  your  note  (2),  p.  69a 
(3rd  edition),  respecting  Chinese  sub- 
stitutes in  criminal  cases.  In  1847,  I 
publi>hed    a    volume    of    '  DesuUorj 


SELF-REGARDING    EVIDENCE.  967 

571.  2.  The  desire  of  injuring  others  has  occasion- 
ally led  to  the  like  consequence.  Persons  reckless  of 
their  own  fate  have  sought  to  work  the  ruin  of  their 
enemies,  by  making  false  confessions  of  crimes  and 
describing  them  as  participators.  We  shall  feel  little 
surprise  at  this,  when  we  recollect  how  often  persons 
have  inflicted  grievous  wounds  on  themselves,  and 
even  in  some  instances,  it  is  said,  committed  suicide. 
in  order  to  bring  down  suspicion  of  intended  or  actual 
murder  on  detested  individuals,  (jr) 

572.  Theanomaly  of  false  confession,  is  not  confined 
to  cases  where  there  might  have  been  a  criminal,  or 
corpus  delicti.  Instances  are  to  be  found  in  the  judicial 
histories  of  most  countries,  where  persons  with  the 
certainty  of  incurring  capital  punishment,  have  acknowl- 
edged crimes  now  generally  recognized  as  impossible, 
We  allude  chiefly  to  the  prosecutions  for  witchcraft  and 
visible  communion  with  evil  spirits,  which  in  former 
ages,  and  especially  in  the  seventeenth  century,  dis- 
graced the  tribunals  of  these  realms.  '     Some  of  them 

Notes  on  the  Government  and  People      naturally  not  one  very  frequently  done. 

of  China  ; '  and  the  13th  note  is  head-       But  the  term  '  ting  heung 

ed  ,'On  personating  criminals.'     .     .     .       ^r±     w»     ,.     ,  ,  .  . 

1  fe  TH     K7I     ht.  'personate  murderer,  .s 

I  think  that  note  will  satisfy  you  that        *X     SLi 

the  personation  of  criminals,  and  that  probably  as  familiar   to   those  conver- 

in  cases  involving  capital  punishment,  sant  with  Chinese  criminal  proceeding; 

is  a   well-known    fact.     I   have,  since  and  laws  as  is,  for  instance,  the    Eng- 

writing  that  note  in  1S46,  spent  fifteen  lish   term  'turn  Queen's  evidence' to 

years  in  active  service  in  this  country,  those  conversant  with  English  criminal 

four  of  them  as  consul  at  Ningpo  and  proceedings.     The  inducement  is   net 

Shanghae  in  Middle   China,  and   now  always    money.      Juniors    in    families 

four  as  consul  at  this  port,  the  most  have  been   known    to  personate    their 

northerly  of  the   empire  ;    and    I   can  criminal    seniors,   and    even    domestic 

assure  you  that  the  custom  exists  every-  slaves  or   serfs  their  guilty  masters  tc 

where    throughout  it.      The    thing    is  whom  they  were  attached. " 

(y)  See  bk.  2,  pt.  2,  £  206. 

1  The  author  subjoins,  as  specimens  of  the  confessions  of 
witchcraft  in  the  seventeenth  century,  the  examinations  of  two 


968      SECONDARY    RULES     OF    EVIDENCE. 

present  the  extraordinary  spectacle  of  individuals,  not 
only  freely  (so  far  as  the  absence  of  physical  torture 
constitutes  freedom)  confessing  themselves  guilty  of 

of  the  Essex  witches  in  1645,  which  purport  to  have  been  taken 
before  Sir  Harbottell  Grimston,  Knt.  and  Baronet,  one  of  the 
members  of  the  Hon.  the  House  of  Commons,  and  Sir  Thomas 
Bowes,  Knt.,  another  of  his  majesty's  justices  of  the  peace  tor 
that  county  (4  How.  State  Trials,  pp.  817,  et  seq.)  : 

"The  examination  of  Anne  Cate,  alias  Maidenhead,  of 
Much  Holland,  in  the  county  aforesaid,  at  Mannyntree,  9th 
May,  1645. 

"  This  examinant  saith  that  she  hath  four  familiars,  which 
she  had  from   her  mother  about  two-and-twenty  years  since ; 
and  that  the   names   of  the  said  imps  are  James,  Prickeare, 
Robyn,  and  Sparrow  ;.  and  that  three   of  these  imps   are   like 
mouses,  and  the  fourth  like  a  sparrow,  which  she  called  Spar- 
row;  to  whomsoever  she   sent  the  said  imp  Sparrow,  it  killed 
them  presently;  and  that,  first  of  all,  she  sent  one  of  her  three 
imps   like   mouses  to  nip  the  knee  of  one  Robert  Freeman,  of 
Little  Clacton,  in  the   county   of  Essex   aforesaid,   whom   the 
said  imp  did  so  lame  that  he  died  on  that  lameness  within  half 
a  year  after;  that  she  sent  the  said  imp  Prickeare  to  kill  the 
daughter  of  John   Rawlins,  of  Much  Holland  aforesaid,  who 
died  accordingly  within  a  short  time  after;  and  that  she  sent 
her  said  imp  Prickeare  to  the  house  of  one  John  Tillet,  which 
did  suddenly  kill  the  said   Tillet;  that  she  sent  her  said  imp 
Sparrow  to  kill  the  child  of  one  George  Parby,  of  Much  Hol- 
land aforesaid,  which  child  the  said   imp   did   presently  kill  ; 
and    that   the  offense    this  examinant  took  against   the   said 
George  Parby,  to  kill  his  said  child,  was  because  the  wife  of 
the  said  Parby  denied  to  give  this  examinant  a  pint   of  milk  ; 
that  she   sent  her  said  imp  Sparrow  to  the  house   of  Samuel 
Ray,  which,  in  a  very  short  time,  did  kill  the  wife   of  the   said 
Samuel  ;  and  that  the  cause  of  this  examiirint's  malice  against 
the  said  woman  was,  because  she  refused  to  pay  to  this  exami- 
nant,  twopence,  which   she  challenged  to  be  due  to  her ;  and 
that   afterwards   her  said  imp  Sparrow  killed  the  said  child  of 
the  said  Samuel  Ray.     And  this  examinant  confesseth,  that,  as 
soon  as  she   had   received  the   said   four  imps   from    her   said 
mother,  the  said  imps   spake  to  this   examinant,  and   told  her 
she   must   deny   God  and    Christ  ;   which   this  examinant  did 
then  assent  to  "  (4  How.  State  Trials,  p.  856). 


SELF-REGARDING    EVIDENCE.  969 

these  imaginary  offenses,  with  the  minutest  details  of 
time  and  place ;  but  even  charging  themselves  with 
having,  through  the  demoniacal  aid  thus  avowed,  com- 
mitted repeated  murders  and  other  heinous  crimes,  (z) 

(z)  See  the  cases  of  Mary  Smith,  2  the  note  to  the  case  of  the  Bury  St. 
Ho.  St.  Tr.  1049  ;  and  of  the  Three  Edmond's  Witches,  6  Ho.  St.  Tr.  647  ; 
Devan  Witches,  8  Ho.  St.  Tr.  1017;      and  the  case  of  the  Essex  Witches,  4 

The  confession   of  Rebecca  West,  taken    before  the  said 
justices,  2 1  st  March,  1645. 

"This  examinant  saith,  that,  about  a  month  since,  Anne 
Leach,  Elizabeth  Gooding,  Hellen  Clark,  Anne  West,  and  this 
examinant,  met  altogether  at  the  house  of  Elizabeth  Clark,  in 
Mannyntree,  where  they  together  spent  some  time  in  praying 
unto  their  familiars,  and  every  one  of  them  went  to  prayers  ; 
afterwards,  some  of  them  read  in  a  book,  the  book  being 
Elizabeth  Clark's;  and  this  examinant  saith,  that  forthwith 
their  familiars  appeared,  and  every  one  of  them  made  their 
several  propositions  to  those  familiars,  what  every  one  of 
them  desired  to  have  effected  ;  that,  first  of  all,  the  said  Eliza- 
beth Clark  desired  of  her  spirit  that  Mr.  Edwards  might  be 
met  withal,  about  the  middle  bridge,  as  he  should  be  come 
riding  from  Eastberryhoult,  in  Surrey;  that  his  horse  might 
be  scared,  and  he  thrown  down,  and  never  rise  again  ;  that  the 
said  Elizabeth  Gooding  desired  of  her  spirit,  that  she  might 
be  avenged  on  Robert  Tayler's  horse,  for  that  the  said  Robert 
suspected  said  Elizabeth  Gooding  for  the  killing  of  a  horse 
of  the  said  Robert,  formerly;  that  the  said  Hellen  Clark  desired 
of  her  spirit,  that  she  might  be  revenged  on  two  hogs  in 
Misley-street  (being  the  place  where  the  said  Hellen  lived),  one 
of  the  hogs  to  die  presently,  and  the  other  to  be  taken  lame  ; 
that  Anne  Leach  desired  of  her  spirit  that  a  cow  might  be 
taken  lame  of  a  man's  living  in  Mannyntree,  but  the  name  of 
the  man  this  examinant  can  not  remember:  that  the  said  Anne 
West,  this  examinant's  mother,  desired  of  her  spirit  that  she 
might  be  freed  from  all  her  enemies  and  have  no  trouble. 
And  this  examinant  saith,  that  she  desired  of  her  spirit  that 
she  might  be  revenged  on  Prudence,  the  wife  of  Thomas  Hart, 
and  that  the  said  Prudence  might  be  taken  lame  on  her  right 
side.  And,  lastly,  this  examinant  saith,  that,  having  thus 
done,  this  examinant  and  the  other  five  did  appoint  the  nex> 
meeting  to  be  at  the  said  Elizabeth  Gooding's  house,  and  s' 
departed  all  to  their  own  houses  "  (Id.  p.  840). 


970     SECONDARY    RULES     OF    EVIDENCE. 

The  cases  in  Scotland  are  even  more  monstrous  than 
those  in  England  ;  (a)  but  there  is  strong  reason  to 
believe  that  in  most  of  them  the  confession  was  ob- 
tained by  torture  ;  (J?)  and  the  following  sensible  solu- 
tion of  the  psychological  phenomenon  which  they  all 
present,  is  given  by  an  eminent  writer  on  the  criminal 
law  of  the  former  country :  (c) — "All  these  circum- 
stances duly  considered;  the  present  misery:  the  long 
confinement ;  the  small  hope  of  acquittal ;  the  risk  of  a 
new  charge  and  prosecution  ;  and  the  certain  loss  of  all 
comfort  and  condition  in  society  ;  there  is  not  so  much 
reason  to  wonder  at  the  numerous  convictions  of  witch- 
craft on  the  confessions  of  party.  Add  to  these  motives 
though  of  themselves  sufficient,  the  influence  of  another 
as  powerful  perhaps,  as  any  of  them, — the  unsound  and 
crazy  state  of  imagination  in  many  of  those  unhappy 
victims  themselves.  In  those  times,  when  every  person, 
even  the  most  intelligent,  was  thoroughly  persuaded  of 
the  truth  of  witchcraft,  and  of  the  possibility  of  acquir- 
ing supernatural  powers,  it  is  nowise  unlikely  that  in- 
dividuals would  sometimes  be  found,  who,  either  seek- 
ing to  indulge  malice,  or  stimulated  by  curiosity  and  an 
irregular  imagination;  did  actually  court  and  solicit  a 

Ho.  St.  Tr.  818,  the  latter  especially.  1678,  who  with  nine  others,  judicially 

The  confessions  of  Anne  Cate,  4  IIo.  confessed  to  have  been  baptized  by  the 

St.  Tr.  856,  of  Rebecca  West,  Id.  840,  devil,  and  to  have  had  carnal  copula- 

of  Rose  Hallybread,  Id.  852,  of  Joyce  tion  with  him.     They  were  all  ennvict- 

Boanes,  Id.  853,  and  of  Rebecca  Jones,  ed  and  burnt.     (Arnot,  360,  361.)     A 

Id.  S54,  are  among  the  most  remarka-  similar  confession  was  made  by  Isso- 

ble  ;  the  two  first  of  which  are  set  out  bell  Gowdie,  13  April,  1662  ;  Pitcairn, 

in  the  Appendix  to  this  work,  No.  II.  vol.  4,  p.  602.     See   also   the   case   of 

(a)  A  large  number  of  these  are  col-  Bessie  Dunlop,  Id.  vol.  2,  p.  49. 

lected    in    Arnot's   Collection  of  cele-  (/>)  For  a  full  description  of  the  in- 

brated    Criminal    Trials   ill    Scotland,  struments    of    torture    used    for    this 

pp.347   et  set/.,  Edinb.   17S5;    and   in  purpose,  see   Pitcairn,   vol.   2,  pp.   50, 

Pitcairn's    "  Criminal   Trials   in   Scot-  375,  376. 

land,"  Edinb.  1S33,  tit.  "  Witchcraft,"  (c)  Hume's  Crim.  Law  of  Scotland, 

in  the  General  Index.    See  in  particu-  vol.  I,  p.  591. 
lar  the  case  of  Isabel  Elliot,  Sept.  13, 


SELF-REGARDING    EVIDENCE.  971 

communication  with  evil  spirits,  by  the  means  which 
in  those  days  were  reputed  to  be  effectual  for  such  a 
purpose.  And  it  is  possible,  that  among  these  there 
might  be  some  who,  in  the  course  of  a  long  and  con- 
stant employment  in  such  a  wild  pursuit,  came  at  last 
to  be  far  enough  disordered,  to  mistake  their  own 
dreams  and  ^ravings,  or  hysteric  affections,  for  the 
actual  interviews  and  impressions  of  Satan."  The  fol- 
lowing case  is  reported  as  having  occurred  in  India  in 
1830.  Three  prisoners  were  made  to  confess  before 
the  police,  to  having,  by  means  of  sorcery,  held  forcible 
connection  with  the  wife  of  the  prosecutor,  then  in  the 
tenth  month  of  her  pregnancy,  beat  or  otherwise  ill- 
treated  her,  and  afterwards  taken  the  child  out  of  hei 
womb,  and  introduced  into  it,  in  lieu  thereof,  the  skin 
of  a  calf  and  an  earthen  pot,  in  consequence  of  which 
she  died.  These  confessions  were  corroborated,  by 
the  discovery  in  the  womb  of  the  deceased  of  an 
earthen  pot  and  a  piece  of  calf's  skin ;  but  the  prison- 
ers were  acquitted,  principally  on  the  ground,  that  the 
earthen  pot  was  of  a  size  that  rendered  it  impossible 
to  credit  its  introduction  during  life,  (d) 

573.  The  above  causes  affect,  more  or  less,  every 
species  of  confessorial  evidence.  But  extra-judicial  con- 
fessorial  statements,  especially  when  not  plenary,  are 
subject  to  additional  infirmative  hypotheses,  which  are 
sometimes  overlooked  in  practice.  These  are  mendacity 
in  the  report ;  misinterpretation  of  the  language  used 
and  incompleteness  of  the  statement.  (e)i.  "Mendacity.' 
The  supposed  confessorial  statement  may  be,  eithei 
wholly  or  in  part,  a  fabrication  of  the  deposing  witnesses 
And  here  it  should  not  be  forgotten,  that  of  all  sorb 


(d)  Kutti  v.  Chatapan  and  others;      Udalut  of  Madras,  20. 
Arbuthnot,  Reports  of  the  Foujdaree  (<?)  3  Benth.  Jud.  Ev.  113. 


972       SECONDARY    RULES    OF    EVIDENCE. 

of  evidence  that  which  we  are  now  considering  is  the 
most  easy  to  fabricate,  and,  however  false,  the  most 
difficult  to  confront  and  expose  by  any  sort  of  counter- 
evidence,  direct  or  circumstantial.  (_/")  2.  "  Misinterpre- 
tation." No  act  or  word  of  man,  however  innocent  or 
even  laudable,  is  exempt  from  this.  E.  g.,  a  paper  in 
the  handwriting  of  the  accused  is  found  in  his  posses 
sion,  in  which  he  is  spoken  of  as  guilty  of  the  offense 
imputed  to  him.  This  is  consistent  with  his  guilt ;  but 
on  the  other  hand,  that  paper  may  be  a  libel  on  him, 
which  the  accused  has  kept  with  a  view  of  refuting  the 
libel,  or  of  bringing  the  libeller  to  justice,  (g)  Again, 
entirely  fallacious  conclusions  may  be  drawn  from  lan- 
guage uttered  in  jest,  or  by  way  of  bravado  ;  (/i)  as 
where  a  man  wrote  to  his  friend,  who  was  summoned 
as  a  juror  on  a  trial  which  excited  much  public  atten- 
tion, conjuring  him  to  convict  the  defendant,  guilty 
or  innocent,  (i)  But  equally  unfounded  inferences 
are  sometimes  drawn  from  words,  supposed  to  be  con- 
fessorial,  but  which  were  used  with  reference  to  an 
act  not  identical  with  the  subject  of  accusation  or 
suspicion  ;  as  where  a  man  who  has  robbed  or  beaten 

(/)    Foster's     Cr.     Law,    243 ;      4  intoxicated,    was    asked    by   a    person 

Blackst.  Coram.  357  ,    I  Greenl.  Evid.  there  with  the  view  of  ensnaring  him, 

§  214,  7th  Ed.  if  he  was  not  one  of  the   parties  con- 

(?)  3  Benth.  Jud.  Ev.  114.  cerned  in  that  affair;    to  which  he  an- 

(/*)   The    unfortunate    result   of  the  swered,    according    to    one    account, 

case    of     Richard     Coleman,     at    the  "  Yes  I  was,  and  what   then?"    or  at- 

Kingston  Spring  Assizes  of  1749.  was  cording  to  another  account,  "  If  I  was, 

partly,  if  not   chiefly,   owning   to  this  what  then?"    On  this  and  some  other 

cause.     A   woman  had  been   brutally  circumstances    he   was  convicted   and 

assaulted  by  three  men,  and  died  from  executed,  but  the  real  criminals,  were 

the  injuries  she  received.     It  appeared  afterwards  discovered.     Two  of  them 

that  at  the  time  of  the  commission  of  were  executed,  confessing  their  guilt, 

the    outrage,    one    of     the    offenders  the    third    having    been    admitted    to 

called  another   of  them   by  the   name  give  evidence   for  the  crown.     Wills 

of  Coleman,  from  which  circumstance  Circ.  Evid.  67  &  71,  3rd  Ed. 

ttached    to    the    prisoner.  (*)  3  Benth.  Jud.  Ev.  115. 

Coleman,  who   was   in  a  public  house 


SELF-REG  A  RDIXG     E  J 1DENCE.  973 

another,  hearing  that  he  has  since  died,  utters  an  ex- 
clamation of  regret  for  having  ill-treated  him.  In 
the  case  of  a  female  accused  of  adultery,  part  of  the 
proof  was  a  self-disserving  statement  in  these  words, 
"  I  am  very  unhappy — for  God's  sake,  hide  my  faults 
— those  who  know  not  what  I  suffered,  will  blame  my 
conduct  very  much."  "Am  I,"  said  Lord  Stowell, 
commenting  on  this,  "placed  in  such  a  situation,  by 
this  evidence,  as  to  say  that  it  must  necessarily  refer 
to  adultery  ?  She  has  been  detected  in  imprudent 
visits — it  might  allude  to  them."  (£)  But  of  all  the 
causes  which  lead  to  the  misinterpretation  of  the 
language  used  by  suspected  persons,  the  greatest  are 
the  haste  and  eagerness  of  witnesses,  and  the  love  of 
the  marvellous  so  natural  to  the  human  mind,  by 
which  people  are  frequently  prompted  to  mistake 
expressions,  as  well  as  to  imagine  or  exaggerate  facts, 
especially  where  the  crime  is  either  very  atrocious  ot 
very  peculiar.  (/)  3.  The  remaining  cause  of  error  in 
confessorial  evidence  of  this  nature  is  "  Incomplete- 
ness : "  i.  e.}  where  words,  though  not  misunderstood 
in  themselves,  convey  a  false  impression,  for  want  of 
some  explanation  which  the  speaker  either  neglected 
to  give,  or  was  prevented  by  interruption  from  giving, 
or  which  has  been  lost  in  consequence  of  the  deafness 
or  inattention  of  the  hearers.     "  111  hearing  makes  ill 

(k)  Williams  v.   Williams,  I    Hagg.  heard  to  say  to  his  wife,  "  Keep  your- 

Cons.  Rep.  304.  self  to  yourself,  and  don't  marry  again." 

(/)  See    supra,    ch.    I,   §  295  ;    and  To  confirm  this  another  witness    was 

note  to  Earle  v.  Picken,  5  C.  &  P.  542.  called,    who   had    also   overheard  the 

A  remarkable  instance  of  this  is  pre-  words,  and  stated  them  to   be,  "  Keep 

sented  in  the  case   of   R.  v.   Simons,  6  yourself   to   yourself,    and    keep   your 

C.  &  P.  540.     The  prisoner  was  then  own  counsel:  "  on  which  Alderson,  B., 

indicted  for  the  then  capital  offense  of  remarked,  "  One  of  these  expressions 

having  set  fire  to  a  barn  ;  and  a  wit-  is  widely  different  from  the  other.     I 

ness  was  called  to    prove  that,  as   the  shows    how    little    reliance    ought    U 

prisoner  was  leaving  the   magistrate's  be    placed    on    such   evidence."     Th« 

room  after  his  committal,  he  was  over-  prisoner  was  acquitted. 


974      SECONDARY    RULES     OF    EVIDENCE. 

rehearsing",  said  our  ancestors.  Expressions  may 
have  been  forgotten,  or  unheeded,  in  consequence  of 
witnesses  not  being  aware  of  their  importance  :  e.  g\x 
a  man  suspected  of  larceny,  acknowledges  that  he 
took  the  goods  against  the  will  of  the  owner,  adding 
that  he  did  so  because  he  thought  they  were  his  own. 
Many  a  bystander,  ignorant  that  this  latter  circum- 
stance constitutes  a  legal  defense,  would  remember 
only  the  first  part  of  the  statement. 

574.  Before  dismissing  the  subject  of  self-disserving 
evidence  in  criminal  cases,  it  remains  to  advert  to  the 
force  and  effect  of"  Non-responsion,"  or  silence  under 
accusation,  "  Evasive  responsion,"  and  "  False  respon- 
sion."  First,  then,  with  respect  to  "  Non-responsion." 
When  a  man  is  interrogated  as  to  his  having  committed 
a  crime,  or  when  a  statement  that  he  has  committed  a 
crime  is  made  in  his  presence,  and  he  makes  neither 
reply  nor  remark,  the  inference  naturally  arises  that 
the  imputation  is  well  founded,  or  he  would  have 
repelled  it.  We  have  already  alluded  to  the  fallacy  of 
the  assumption  that  silence  is  in  all  respects  tanta- 
mount to  confession ;  {111)  and  however  strongly  such 
a  circumstance  may  tell  against  .suspected  persons  in 
general,  there  are  many  considerations  against  invest- 
ing it  with  conclusive  force.  1.  The  party,  owing  to 
deafness  or  other  cause,  may  not  have  heard  the  ques- 
tion or  observation ;  or,  even  if  he  has,  may  not  have 
understood  it  as  conveying  an  imputation  upon  him. 
2.  Supposing  the  accused  to  have  heard  the  question 
or  observation,  and  understood  it  as  conveying  an 
imputation  upon  him,  his  momentary  silence  may  be 
caused  by  impediment  of  utterance,  or  a  feeling  of 
surprise  at  the  imputation,  (u)  3.  When  this  kind  of 
evidence  is  in  an  extra-judicial  form,  the  transaction 

On)  SuJ>ra,  sect.  I,  §  521.  (n)  Burrill,  Circ.  Evid.  575  &  4S3. 


SELF-REGARDING    EVIDENCE.  975 

comes  to  the  tribunal  through  the  testimony  of  wit- 
nesses, who  may  either  have   misunderstood,  or  who 
willfully  misreport  it.     4.  Assuming  the  matter  cor- 
rectly reported,  the  following  observations  of  Bentham 
are    certainly     very    pertinent    and    forcible :     "  The 
strength  of  it "  (i.  e.,  the  inference  of  guilt  from  evi- 
dence  like   that  we  are   now  considering)   "  depends 
principally  upon  two  circumstances  :  the  strength  of 
the  appearances  (understand,  the  strength  they  may 
naturally  be  supposed  to  possess,  in  the  point  of  view 
in  which  they  present  themselves  to  the  party  inter- 
rogated),— the  strength  of  the  appearances,  and  the 
quality  of  the  interrogator.     Suppose  him  a  person  of 
ripe  years,  armed  by  the    law  with   the   authority  of 
justice,  authorized  (as  in  offenses  of  a  certain  magni- 
tude persons  in  general  commonly  are,  under  every 
system  of  law)  to  take  immediate  measures  for  ren- 
lering  the  supposed  delinquent  forthcoming  for  the 
purposes  of  justice, — authorized  to  take  such  measures, 
and  to  appearance  having  it  in  contemplation  so  to 
do ; — in  such  case,  silence  instead  of  answer  to  a  ques- 
tion put  to  the  party  by  such  a  person,  may  afford  an 
inference  little   (if  at   all)   weaker,  than    that   which 
would  be  afforded  by  the  like  deportment  in  case  of 
judicial    interrogation  before    a  magistrate.     Suppose 
(on  the  other  hand)  a  question  put  in  relation  to  the 
subject,  at  a  time  distant  from  that  in  which  the  cause 
of  suspicion   has  first  manifested  itself, — put  at  a  time 
when   no    fresh  incident    leads  to  it, —  put,  therefore, 
without  reflection,  or  in  sport,  by  a  child,  from  whom 
no    such    interposition    can  be    apprehended,  and   to 
whose  opinion  no  attention  can  be  looked  upon  as 
due,  in  a  case  like  this,  the  strength  of  the  inference 
may  vanish  altogether."  (0) 

(0)  3  Bcnth.  J  ml.  E/.  92. 


976     SECONDARY    RULES     OE    EVIDENCE. 

575.  Connected  with  the  subject  of  non-responsion 
is  that  of  incomplete  or  "  Evasive  responsion  : "  i.  e. 
where  a  man  is  interrogated  as  to  his  having  committed 
a  crime,  or  when  a  statement  that  he  has  committed  a 
crime  is  made  in  his  presence,  and  he  either  evades  the 
question ;  or,  while  denying  his  guilt,  refuses  to  show  his 
innocence,  or  to  answer  or  explain  any  circumstances 
which  are  brought  forward  against  him  as  criminative 
or  suspicious.  The  inference  of  guilt  from  such  con- 
duct is  weakened  by  the  following  additional  considera- 
tions. 1.  A  man  ever  so  innocent,  can  not  always 
explain  the  circumstances  which  press  against  him. 
Thus  on  a  charge  of  murder,  the  accused  declared  him- 
self unable  to  explain  how  his  night-dress  became 
stained  with  blood ;  the  truth  being  that,  unknown  to 
him,  his  bed-fellow  had  had  a  bleeding  wound.  (J>)  So 
a  man  charged  with  larceny,  could  not  explain  how  the 
stolen  property  found  its  way  into  his  house  or  trunk, 
it  having  been,  unknown  to  him,  deposited  there  by 
others,  (q)  2.  In  many  cases  an  accused  or  suspected 
person  can  only  explain  particular  circumstances,  by 
criminating  other  individuals  whom  he  is  unwilling  to 
expose,  or  disclosing  matters  which,  though  uncon- 
nected with  the  charge,  he  is  anxious  to  conceal. 
Sometimes,  too,  though  blameless  in  the  actual  in- 
stance, he  could  only  prove  himself  so  by  showing  that 
he  was  guilty  of  some  other  offense.  3.  Where  a 
prosecution  is  altogether  groundless — the  result  of 
conspiracy,  or  likely  to  be  supported  by  perjured  tes- 
timony, it  is  often  good  policy  on  the  part  of  its 
intended  victim,  not  to  disclose  his  defense  until  it  is 
judicially  demanded  of  him  on  his  trial. 

576.  "  False  responsion,"  however,  is  a  criminative 

(/ )    See    a    case   of    this   kind    in      March  n,  1837. 
Chambers'    Edinburgh     Journal,     for  (y)  See  bk.  2,  pt.  2,  §  206. 


SELF-REGARDING    EVIDENCE.  977 

fact  very  much  stronger  than  either  of  the  former. 
Bentham  justly  observes  that,  in  justification  of  simple 
silence,  the  defense  founded  on  incompetency  on  the 
part  of  the  interrogator  may  be  pertinent,  and  even  con- 
vincing; but  that  to  false  responsion  the  application 
of  it  could  scarcely  extend.  To  the  claim  which  the 
question  had  to  notice,  the  accused  or  suspected  per- 
son has  himself  borne  sufficient  testimony  ;  so  far 
from  grudging  the  trouble  of  a  true  answer,  he  be- 
stowed upon  it  the  greater  trouble  of  a  lie.  (f)  The 
infirmative  hypotheses  here  seem  to  be,  1.  The  possi 
bility  of  extra-judicial  conversations  having  been 
misunderstood  or  misreported.  2.  As  innocent  per- 
sons, under  the  influence  of  fear,  occasionally  resort  to 
false  evidnece  in  their  defense,  false  statements  may 
arise  from  the  same  cause.  The  maxim  "  Omnia 
praesumuntur  contra  spoliatorem,"  to  which  that  sub- 
ject belongs,  has  been  examined  in  a  former  chapter,  (s) 
577.  While  the  vulgar  notion,  derived  probably 
from  mediaeval  times, — when  it  was  sanctioned  by  the 
then  all  powerful  authority  of  the  civilians  and  canon- 
ists, (f) — that  confessions  of  guilt  are  necessarily  true, 
is  at  variance  with  common  sense,  experience,  law,  and 
practice ;  still,  it  must  never  be  forgotten  that,  in  gen- 
eral, such  confessions  constitute  proof  of  a  very  satis- 
factory, and  when  in  a  judicial  or  plenary  shape,  of  the 
most  satisfactory  character.  Reason  and  the  universal 
voice  of  mankind  alike  attest  this  ;  and  the  legitimate 
use  of  the  unhappy  cases  above  recorded,  and  others 
of  a  similar  stamp,  is  to  put  tribunals  on  their  guard 
against  attaching  undue  weight  to  this  sort  of  evi- 
dence.    The  employing  them  as  bugbears  to  terrify 


(r)  3  Benth.  Jud.  Ev.  94.  (/)  See    upra,  §  554. 

Is)  Supra,  ch.  2,  sect.  8.  sub-sect.  8. 
62 


973      SECONDARY    RULES    OF    EVIDENCE. 

or  the  converting  them  into  excuses  for  indisciiminate 
sceptism  or  incredulity,  is  a  perversion,  if  not  a  pros- 
titution of  the  human  understanding. 


REJECTED    EVIDENCE.  979 


CHAPTER  VIII. 

EVIDENCE    REJECTED    ON    GROUNDS    OF    PUBLIC     POLICY 

PARAGRAPH 

Evidence  rejected  on  grounds  of  public  policy 578 

Matters  thus  excluded         .........  578 

i°.  Political 5/8 

2°.  Judicial 579 

1.  Grand  jurors 579 

2.  Petty  jurors 580 

3°.  Professional       .......  ...  581 

1.  Communications  to  legal  advisers  ....  581 

2.  Communications  to  medical  men-  -not  privileged     .         .  582 

3.  Communications  to  spiritual  advisers — doubtful            .  5 S3 
40.  Social 586 

1.  Husband  and  wife  .......  586 

16  &  17  Vict.  c.  83 586 

2.  Secrets  of  business  or  friendship — not  protected    .         .  586 
Rejection  of  evidence  tendered  for  expense,  vexation,  or  delay      .          .         587 

578.  Under  this  head  might  in  strictness  be  classed, 
all  evidence  which  may  be  rejected  by  virtue  of  any 
exclusionary  rule,  seeing  that  it  is  to  public  policy  all 
such  rules  owe  their  existence.  But  the  expression, 
"  evidence  rejected  on  grounds  of  public  policy,"  is 
here  used  in  a  limited  sense  ;  as  signifying  that  princi- 
ple by  which  evidence,  receivable  so  far  as  relevancy 
to  the  matters  in  dispute  is  considered,  is  rejected  on 
the  ground  that,  from  its  reception,  some  collateral 
evil  would  ensue  to  third  parties  or  to  society.  One 
species  of  this  has  been  already  treated  of,  under  the 
head  of  witnesses  who,  as  has  been  shown,  are  privi- 
leged from  answering  questions  having  a  tendency  to 
criminate,  or  to  expose  them  to  penalty  or  forfeiture, 
or  even,  in  some  cases,  merely  to    degrade  them,  {a) 

{a)  Bk.  2,  pt.  1,  ch.  I. 


9«o     SECONDARY    RULES     OE    EVIDENCE. 

But  taking  a  general  view  of  the  subject,  the  matters 
thus  excluded  on  grounds  of  public  policy  may  be 
divided  into  political,  judicial,  professional,  and  social. 
Und;r  the  first  come  all  secrets  of  state,  such  as  state 
papers  ;  and  all  communications  between  government 
and  its  officers  ; — the  privilege  in  such  cases,  not  be- 
ing that  of  the  person  who  is  in  possession  of  the 
secret,  but  that  of  the  public,  as  a  trustee  for  whom 
the  secret  has  been  intrusted  to  him.  (J>)  Another 
illustration  of  the  same  privilege  is  to  be  found  in  the 
rule,  that  the  channels  through  which  information 
reaches  the  ears  of  government  must  not  be  dis- 
closed. (V) 

579.  20.  Judicial.  The  principal  instance  of  this 
is  in  the  case  of  jurymen.  First,  grand  jurors  can  not, 
at  least  in  general,  be  questioned  as  to  what  took  place 
among,  or  before  them,  while  acting  as  such,  (d)  In  an 
early  case  on  this  subject  (e)  we  are  informed,  that "  the 
judge  would  not  suffer  a  grand  juryman  to  be  produced 
as  a  witness,  to  swear  what  was  given  in  evidence  to 
them,  because  he  is  sworn  not  to  reveal  the  secrets  of 
his  companions."1  "  See,"  adds  the  reporter,  "  if  a  wit- 
ness is  questioned  for  a  false  oath  to  the  grand  jury,  how 

(b)  See   Dawkins  v.  Lord    Rokeby,  Bryant,    15    M.    &    W.    169,   and    the 

L.  Rep.,  8  Q.  B.  255  ;    per  Dallas,  C.  cases  there  referred  to. 

J.,  Home  v.  Bentinck,  2  B.  &  B.  130,  {d)  Tayl.  Ev.  §  S63,  4th  Ed. 

162.  (e)  Clayt.  84,  pi.  140. 

(<r)    See    the     Attorney-General    v. 

One  reason  for  this,  says  1  Greenleaf  on  Evidence,  §  252  : 
•'may  be  to  prevent  the  escape  of  the  party,  should  he  know 
that  proceedings  were  in  train  against  him;  another  maybe 
to  secure  freedom  of  deliberation  and  opinion  among  the 
grand  jurors,  which  would  be  impaired  if  the  part  taken  by 
each  might  be  made  known  to  the  accused.  A  third  reason 
may  be  to  prevent  the  testimony  produced  before  them  from 
being  contradicted,  at  the  trial  of  the  indictment  by  suborna- 
tion and  perjury  on  the  part  of  the  accused." 


REJECTED    EVIDENCE.  981 

it  shall  be  proved  if  some  of  the  jury  be  not  sworn  in 
such  a  case."  He  refers  to  a  case  of  Hitch  v.  Mallet, 
where  the  point  was  raised,  and  adds  a  qucere  what  be- 
came of  it.  Considering  that  the  grand  jury  are  the 
inquest  of  the  county,  whose  duty  it  is  not  merely  to 
examine  the  bills  of  indictment  sent  before  them,  but  to 
inquire  into  its  state,  and  present  to  the  Queen's  justices 
anything  they  may  find  amiss  in  it,  there  appears  reason 
for  throwing  the  protection  of  secrecy  over  their  de- 
liberations. But  perjury,  or  indeed  any  other  offense 
committed  in  their  presence,  and  afterwards  made  the 
subject  of  an  indictment  or  information,  is  a  very  dif- 
ferent matter.  Suppose  a  witness  were  to  murder  or 
assault  another  witness  in  the  presence  of  the  grand 
jury,  would  not  the  evidence  of  its  members  be  receiv- 
able against  him  ?  Or  suppose,  on  a  dispute  arising 
out  of  the  business  before  them,  one  of  the  grand  jury 
were  to  murder  or  assault  another,  is  he  to  go  unpun- 
ished ?  The  grand  juror's  oath  is  to  keep  secret  "  the 
Queen's  counsel,  his  fellows;  and  his  own:"  (/")  it  is 
obvious  that  the  cases  just  put  do  not  come  under 
either  of  the  latter  heads ;  and,  by  instituting  the  pro- 
secution, the  crown  has  waived  the  privilege  of  secrecy 
so  far  as  its  rights  are  concerned.  (  g  )  * 

(/)  8  Ho.  St.  Tr.  759,  772,  note.   It  Abr.  Corone,  pi.  113. 

was    formerly    considered    treason    or  (g)  See  4  Christ.  Blackst.  Com.  126, 

felony  in  a  grand  juror  to  disclose  the  note  4,  303,  note   I,  and  Tayl.  Ev.  § 

king's  counsel,  27  Ass.  pi.  63  ;    Bro>  863,  4U1  Ed. 

1  The  extent  of  the  limitation  upon  the  testimony  of  errand 
jurors  is  best  defined  by  the  terms  of  their  oath  of  office,  by 
which  "the  commonwealth's  counsel,  their  fellows,  and  their 
own,  they  are  to  keep  secret."  Per  Bigelow,  J.,  Common- 
wealth v.  Mill,  11  Gush.  137,  140.  The  privilege  extends  to 
the  clerk  of  the  grand  jury  (1  Greenleaf  on  Evidence,  §  252), 
to  the  district  attornevor  prosecuting  officer,  if  present  at  their 
deliberations.     MeLellan  v.   Richardson,   1   Shepl.   82  ;  Com. 


982      SECONDARY    RULES     OF    EVIDENCE. 

580.  Secondly,  the  evidence  of  petty  jurors  is  not 
receivable  to  prove  their  own  misbehavior,  or  that  a 
verdict  which  they  have  delivered  was  given  through 

mon  wealth  v.  Tilden,  cited    1   Greenleaf  on    Evidence,  §  252, 
note  4  ;  Wharton  on  Criminal  Law,  §  512;  citing  4  Bost.  L.  R. 
4.     They  are   not   permitted  to  disclose  who  agreed   or  who 
did  not  agree  in  finding  a  bill  of  indictment  ;   nor  the  evidence 
presented.     McLellan  v.  Richardson,  1  Shepl.  82  ;  Low's  Case, 
4  Greenl.  439,  446,  453  ;  Burr's  Trial,  Evidence  for  Defendant, 
p.  2  ;  Huidekoper  v.  Colton,3  Watts,  56.     They  may,  however, 
be  compelled  to  disclose  if  a  particular  witness  testified  before 
them.     Huidekoper  v.  Colton,  3  Watts,  56;  Commonwealth  v. 
Hill,  11    Cush.  137,  140;  or  whether  twelve   of  their  number 
actually  concurred  in  bringinga  bill.  Commonwealth  v.  Smith, 
9  Mass.  107  ;  Low's  Case,  4  Greenl.  439;  McLellan  v.  Richard- 
son, 1  Shepl.  82.     But  this  is  not  settled  ;  see  the  contrary  held 
in  State  v.  Fassett,  16  Conn.  457  ;  State  v.  Baker,  20  Mo.  538; 
People  v.  Hubbard,  4  Den.  133  ;  holding  that  the  affidavit  of 
one  grand  juror  will  not  be  received  for  that  purpose.     The 
better  opinion   (says  Wharton  on  Criminal  Law,  §  509)  is  that 
the  affidavit  of  a  grand  juror  is  not  receivable  to  impeach  the 
finding  of  his  fellows.     State  v.  Doon,  R.  M.  Charl.  1  ;  State 
v.  McLeod,  1    Hawks,  344  ;  State  v.   Baker,  20   Mo.  538.     Or 
to  show  how  many  grand  jurors   were  present,  or  voted   in 
favor  of  a  bill.     State  v.  Fassett,  16  Conn.  457  ;  State  v.  Baker, 
20  Mo.  538;  People  v.  Hubbard,  4  Den.  133.     When  a  grand 
juror  was  grossly  intoxicated  while   discharging   his  duty  as 
such,  a  presentment  was  made  by  the  rest  of  the  grand  jury, 
and  an  i-ndictment  against   him  ordered  by  the  court  in  the 
English  case  of  Penn   v.  Keffer,  Addison,  290.     As  to  which 
concurrence  it  seems  that  the  certificate  of  their  foreman  is 
not  conclusive  evidence.     (Id.)     As  to  whether  a  grand  jury- 
man may  be  asked  whether  the  testimony  of  a  person,  given 
before  the  grand  jury  agrees  with  the  same  person's  testimony 
on  the  trial,   the   rule    is  not  everywhere  the  same.       See  1 
Greenleaf  on  Evidence.   §    252,  and   cases   cited;    Wharton's 
American  Criminal   Law,  §§   508,  509,  510.     State  v.   Fassett, 
16  Conn.  457  ;  Thomas  v.  Commonwealth,  2   Robinson,  295  , 
State  v.  Offutt,  4  Blackf.  355  ;  Huidekoper  v.  Colton,  3  Watts, 
56.     See  as  to  rule   in  North    Carolina,  State  v.  Broughton,  7 
Ired.    96.     But    not    in    New     Jersey ;      Imlay    v.     Rogers,    2 
Halsted,  347  ;  nor  in    Missouri  ;    State   v.  Baker,  20   Mo.  338 
The  statutes  of  New  York   provide  (Part  iv\,  c.  2,  tit.  4,  art.  1, 


REJECTED    EVIDENCE.  983 

mistake.  (Ji)  In  order  to  guard  against  misconcep- 
tions as  to  the  findings  of  juries,  it  is  the  established 
practice  of  the  courts  not  to  receive  a  verdict,  unless 

(A)  Goodman  v.  Cotherington,  I  Sid.  The  competency  of  jurymen,  as  wit- 

235;    Norman    v.    Beamont,    Willes,  nesses  in  a  cause  which  they  are  trying, 

487,   note ;    Palmer  v.  Crowle,  Andr.  is    a   wholly   different   question ;    for 

382  ;    Vaise  v.  Delaval,   i   T.  R.    n  ;  which  see  bk.  2,  pt.  I,  ch.  2,  §  187. 
Straker  v.  Graham,  4  M.  &  W.  721. 

sec.  31,  that  "  members  of  the  grand  jury  may  be  required  by 
any  court  to  testify  whether  the  testimony  of  a  witness,  ex- 
amined before  such  jury,  is  consistent  with,  or  different  from, 
the  evidence  given  by  such  witness  before  such  court,  and 
they  may  also  be  required  to  disclose  the  testimony  given 
before  them  by  any  person  upon  a  complaint  against  such 
person  on  perjury,  or  upon  his  trial  for  such  offense;  but  in 
no  case  can  a  member  of  a  grand  jury  be  obliged  or  allowed 
to  testify  or  declare  in  what  manner  he  or  any  other  member 
of  the  jury  voted  on  any  question  before  them,  or  what 
opinions  were  expressed  by  any  juror  in  relation  to  any  such 
question.  See  the  Massachusetts  statute,  Rev.  Stat.,  ch.  136, 
§§  13,  14.  It  has  been  held  inadmissible  for  a  grand  juror  to 
show  that  a  bill  was  found  without  testimony,  or  upon  insuf- 
ficient testimony  ;  People  v.  Hubbard,  4  Den.  133  ;  State  v. 
Boyd,  2  Hill,  288;  Turk  v.  State,  2  Hammond,  Part  II.,  240; 
or  that  only  one  offense  was  sworn  to  before  the  grand  jury; 
People  v.  Hubbard,  4  Den.  133.  In  Missouri  it  is  provided  by 
statute  that  no  grand  juror  shall  disclose  any  evidence  given 
before  the  grand  jury  ;  State  v.  Baker,  20  Mo.  33S  ;  but  in 
State  v.  Brewer,  8  Mo.  373,  it  was  held  admissible  for  a  grand 
juror  to  state  that  a  certain  person  testified  as  to  certain  sub- 
jects before  them;  but  see  Beam  v.  Link,  27  Mo.  261.  In 
Indiana  it  has  been  held  admissible  for  a  grand  juryman  to 
testify  in  a  court.of  justice  to  what  passed  before  the  grand 
jury;  Burnham  v.  Hatfield,  5  Blackf.  21;  and  it  was  held  in 
Granger  v.  Warrington,  that  where  grand  jurors  are  not  re- 
quired to  take  an  oath  of  secrecy,  they  are  competent  witness- 
es to  prove  general  facts  which  come  to  their  knowledge 
while  acting  as  grand  jurors  (Wharton's  Am.  Criminal  Law, 
§  511).  See  as  to  the  rules,  People  v.  Hulbut,  4  Den.  (N.  Y.) 
133;  State  v.  Oxford,  30  Tex.  428;  State  v.  Squire,  10  N.  H. 
558;  State  v.  Symonds,  36  Me.  128;  Commonwealth  v.  Crans, 
3  Penn.  Law  Journal,  422  ;  State  v.  Offutt,  4  Blackf.  355; 
People  v.  Young,  31  Cal.  ^64;  Crocker  v.   State,   Meigs.    127 


984     SECONDARY    RULES    OF    EVIDENCE. 

all  the  jurors  by  whom  it  is  given  are  present  and 
within  hearing;  and,  after  it  is  recorded,  the  officer 
rehearses  it  to  them  as  recorded,  and  asks  them  if  that 
is  the  verdict  of  them  all.  The  allowing  a  juryman 
to  prove  the  real  or  pretended  misbehavior  or  mistake 
of  himself  or  his  companions  would  open  a  wide  door 
to  fraud  and  malpractice  in  cases  where  it  is  sought  tc 
impeach  verdicts. ' 

United  States  v.  Charles,  2  Cranch.  C.  C.  76;  Commonwealth 
v.  Hill,  11  Cush.  (Mass.)  137;  Imlay  v.  Rogers,   2    Halst.  (N. 
J.)  347;  Commonwealth  v.  Mead,  12  Gray  (Mass.)    167:  State 
v.  McLeod,  1  Hawks.  (N.  C.)  344;  State  v.   Beebe,    17    Minn 
241. 

1  As  a  general  rule,  the  testimony  of  a  juror  is  inadmissible 
to  impeach  a  verdict.  Read- v.  Commonwealth,  22  Gratt.  924; 
State  v.  Godwin,  5  Ired.  401  ;  Dana  v.  Tucker,  4  Johns.  487; 
Johnson  v.  State,  27  Tex.  758;  Bridge  v.  Eggleston,  14  Mass. 

245;  Commonwealth  v.  Drew,  4  Mass.  391  ;  Sargeant  v.  , 

5  Cowen,  106  ;  Grinned  v.  Phillips,  1  Mass.  541  ;  Crawford  v. 
State,  2  Yerg.  60,  Hudson  v.  State,  9  Id.  40S;  State  v.  Stoke- 
ley,  16  Minn.  282  ;  State  v.  Coupenhaver,  39  Mo.  430  ;  Ex 
parte  Caykendall,  6  Cowen,  53;  State  v.  Millecan,  15  La.  Ann. 
577  ;  People  v.  Columbia,  &c,  1  Wend.  297  ;  State  v.  Free- 
man, 5  Conn.  348;  Stanton  v.  State,  8  Eng.  (13  Ark.)  317; 
Bennett  v.  State,  3  Inch  167;  State  v.  Aver,  3  Fost.  (N.  H.) 
301;  People  v.  Carnal,  1  Parker,  C.  C.  256;  People  v.  Baker, 
1  Cal.  403  ;  C luggage  v.  Swan,  4  Binney,  150  ;  State  v.  Doon, 
R.  M.Charlton,  1.  But  the  affidavits  of  jurors  will  some- 
times be  received  for  purposes  of  explaining,  correcting,  or 
enforcing  a  verdict;  Dana  v.  Tucker,  4  Johns.  487  ;  State  v. 
Ayer,  3  Fost.  (N.  H.)  301  ;  Jackson  v.  Dickenson,  15  Johns. 
309;  Farrer  v.  State,  2  Ohio  St.  (N.  S.)  54;  Cochran  v.  Street, 
1  Wash.  79;  State  v.  Howard,  17  N.  H.  171  ;  and  in  Califor- 
nia, by  statute;  Donner  v.  Palmer,  23  Cal.  40.  Subsequent 
declarations  of  a  juryman,  after  a  general  verdict,  are  not  ad- 
missible to  qualify  it;  Wharton  on  Criminal  Law  (7th  Ed.) 
§  3328;  though  affidavits  of  bystanders  as  to  what  passed 
within  their  knowledge  touching  the  delivery  of  a  verdict, 
may  be  taken  ;  Id.  In  Tennessee,  the  English  rule  appears  to 
be  rejected  altogether;  Crawford  v.  State,  2  Yerg.  60;  Coch- 
ran v.  State,  7  Humph.  544  ;  though  it  has  been  held  that  affi- 
davits of  jurors,  that  their  verdict  was  founded   upon  certain 


REJECTED    E 1 1DENCE.  98  5 

581.  3°  Professional.  1.  At  the  head  of  these 
stand  communications  made  by  a  party  to  his  legal 
advisers,  i.e.,  counsel,  attorney,  &c. ;  (i)  and  this  in- 

(**)  Waldron    v.    Ward,    Styl.    449;  Gaskell,  1  Myl.  &  K.  98;  Ilibberd  v. 

Wilson  v.  Rastall,  4  T.  R.  753;  Foote  Knight,  2  Exch.  ir  ;  Cleave  v.  Jones, 

v.  Hayne,   Ry.  &  M.   165  ;  Taylor  v  7  Exch.  421.     See  also   Introd.  pt.  2, 

Foster,  2  C.  &  P.   195  ;    Du  Bane  v.  §  53. 
Livette,  1   Peake,    77  ;  Greenough  v. 

portions  of  the  evidence  submitted  to  them  (which  evidence 
may  afterwards  be  held  to  be  illegal),  will  not  be  sufficient  to 
warrant  the  granting  of  a  new  trial  ;  Hudson  v.  State,  9  Yerg. 
408.     Where    a  juror    has   denied,   under   oath,    that  he   has 
formed  an  opinion,  the  affidavit  of  a  witness  to  the  contrary- 
will   not   impeach  a  verdict ;  Epps  v.  State,  19   Geo.   102;  nor 
will  affidavits  be  received  after  verdict  as  to  the  conversation 
of  jurors   respecting  their  verdict  ;  Drummond  v.    Leslie,  5 
Blackf.    453  ;  or    to    their    improper    motives  ;    Wharton    on 
Criminal  Law  (7th  Ed  )  §  3329  ;  or  from  the  jurors  themselves 
to  purge  themselves  from  an  imputation   of  misconduct ;  Or- 
gan v.   State,  26   Miss.  78  ;   Ray  v.  State,  15  Geo.  223  ;   French 
v.  Smith,  4  Vt.  363;  People  v.  Backus,  5   Cal.   275;  McGuffie 
v.  State,  17  Geo.  497  ;  Sheldon  v.  Perkins,  37  Vt.  550  ;  Sawyer 
v.  Hannibal,  &c,  R.  R.,  37  Mo.  240  ;  Thomas  v.  Chapman,  45; 
Barb.   y$;   People  v.    Hughes,    29    Cal.    237;  but   see,   contra, 
Moffett  v.    Bowman,  6  Gratt.    219;   Frie's  Case,  1  Wh.  St.  Tr. 
605;  Taylor  v.  Greely,  3  Greenl.  204.    But  a  juror  may  be  ad- 
mitted to  impeach  the  conduct  of  his  fellow-jurymen.    United 
States   v.    Reid,    12    How.    361  ;   Commonwealth   v.    Mead,    12 
Gray,  167  ;   Deacon  v.  Shreve,  2  Zab.  (N.  J.)  176.     Says  Whar- 
ton  (On   Criminal   Law,  7th  Ed.,  §  3328):   "The   true  view  is 
this:  jurors  can  not  be  received  to  qualify,  by  parol  testimony, 
matters  of  record,  nor  can  they  be  permitted  to  state    matters 
concerning  their  deliberations  which  may  be  proved  aliunde. 
From     necessity,    however,    when    gross     injustice    has    been 
wrought  from   misconduct  or  misapprehension  in  their  delib- 
erations, they  are  to  be  permitted  to  prove  such   misconduct 
or  misapprehension."    Thus  they  may  prove  that  the  case  was 
decided   by  lot  ;  Wright  v.  Illinois  Tel.  Co.,  20  Iowa,  19;  see 
People  v.  Hughes,  29  Cal.   257;  Wharton  on   Criminal    haw, 
§  3321  ;  that  the  instructions  of  the  court  were  misunderstood  ; 
Packard  v.  United  States,  1  Iowa,  225  ;  or  that  the  v<  rdict  was 
agreed  to  on  the  representation  that  the  Governor  would  par 


986     SECONDARY    RULES     OF    EVIDENCE. 

eludes  all  media  of  communication  between  them  ; 
such  as  clerks,  (/)  interpreters,  (/£)  or  agents.  (/) 
But  the  privilege  does  not  extend  to  matters  of  fact, 
which  the  attorney  knows  by  any  other  means  than 
confidential  communication  with  his  client,  though  if 
he  had  not  been  employed  as  attorney  he  probably 
would  not  have  known  them,  (m)  And  the  privilege 
is  not  the  privilege  of  the  professional  man,  but  of  the 
client,  who  may  waive  it  or  not,  as  he  pleases,  (ft) 
And  his  refusal  to  waive  it,  raises  no  presumption 
against  him.  (o)  l 

(/)  Taylor  v.  Foster,  2  C.  &  P.  195.  and  the  cases  there  referred  to.    Brown 

(£)  Du  Bane   v.    Livette,   1   Peake,  v.  Foster,  1  H.  &  N.  736. 

77.  («)  Tayl.  Ev.  §  S43,  4th  Ed. 

(/)  Parkins  v.  Hawkshaw,  2  Stark,  (0)  Wentworth  v.  Lloyd,   10  H.  L. 

239.  C.  589. 

(m)  Uwyer  v.  Collins,  7  Exch.  639, 

don  on  the  jurors'  recommendation;  Crawford  v.  State,  2 
Yerg.  60;  and  see  Deacon  v.  Shreve,  2  Zab.  (N.  J.)  176  ;  Heff- 
ron  v.  Gallupe,  55  Me.  563. 

1  Holmes  v.  Barbin,  15  La.  Ann.  553;  March  v.  Ludlum, 
3  Sandf.  Ch.  35;  Rhoades  v.  Selin,  4  Wash.  7  rS ;  Chew  v. 
Farmers'  Bank,  2  Md.  Ch.  231;  Heister  v.  Davis,  3  Yeates 
(Pa.)  4;  King  v.  Barrett,  11  Ohio  St.  261 ;  Gordan  v.  Hess,  13 
Johns.  492;  Chirac  v.  Rei nicker,  11  Wheat.  2S0  ;  Parker  v. 
Carter,  4  Munf.  273;  Rogers  v.  Dare,  Wright  (Ohio),  136; 
Crawford  v.  McKissack,  1  Port.  (Ala.)  433  ;  McClellan  v. 
Longfellow,  32  Me.  494;  Riley  v.  Johnston,  13  Ga.  260;  Jen- 
kinson  v.  State,  5  Blackf.  (Ind.)  465.  But  an  attorney  may  be 
required  to  disclose  by  whom  he  is  employed.  Chirac  v.  Rei- 
nicker,  11  Wheat.  280;  Satterlee  v.  Bliss,  36  Cal.  489;  Martin 
v.  Anderson,  21  Ga.  301  ;  Brown  v.  Payson,  6  N.  H.  443.  And 
the  privilege  does  not  extend  to  third  persons  present  at  a 
conference  between  attorney  and  client.  Goddard  v.  Gard- 
ner, 28  Conn.  172;  Hoy  v.  Morris,  13  Gray,  519;  Jackson  v. 
French,  3  Wend.  337.  And  these  rules  can  be  enforced  by  the 
court  of  its  own  motion.  People  v.  Atkinson,  40  Cal.  284. 
The  rule  protecting  professional  communications  has  been 
held  to  apply  to  a  case  where  one  seeking  counsel  pays  no  fee, 
and  employs  other  attorneys,  and  even  where  the  lawyer  con 


REJECTED     EVIDENCE.  987 

582.  2.  Communications  to  a  medical  man,  even 
in  the  strictest  professional  confidence,  have  been  held 
not  protected  from  disclosure,    (p) — a  rule  harsh  in 

(/)  Duchess  of  Kingston's  case,  20      bons,  1  C.  &  P.  97. 
Ho.  St.  Tr.    572  et  seq. ;    R.  v.  Gib- 

sulted  Is  afterwards  employed  on  the  other  side;  Cross  v.  Rig- 
gins,  50  Mo.  335  ;  to  the  contents  of  a  pleading  verified  by  a 
client,  and  left  with  the  lawyer,  to  be  filed  if  he  thought  best, 
and  which  was  not  filed  ;  Neal  v.  Patten,  47  Ga.  73  ;  to  where 
an  attorney  drew  a  deed  and  a  receipt  for  a  prisoner  on  the 
day  of  an  alleged  murder  committed  by  the  latter;  Graham 
v.  People,  63  Barb.  468  ;  to  an  attorney  who  read  over  a  deed 
to  certain  grantees  after  it  was  drawn  ;  Rogers  v.  Griffin,  64 
Barb.  373.  But  the  attorney  of  a  creditor,  by  accepting  a  re- 
tainer from  the  latter's  debtor,  can  not  evade  the  rule;  Mayer 
v.  Hermann,  10  Blatchf.  256 ;  nor  does  the  rule  apply  to  a 
scrivener;  Rundel  v.  Yates,  48  Miss.  685  ;  or  a  mere  convey- 
ancer ;  Matthew's  Estate,  1  Phil.  (Pa.)  292  ;  Matthew's  Estate, 
5  Pa.  Jan.  J.  R.  149;  nor  are  communications  privileged  when 
made  by  one  party  to  the  attorney  of  the  other,  looking  to  a 
compromise ;  McLean  v.  Clark,  47  Ga.  24  ;  or  by  a  client  to 
his  attorney,  forbidding  him  to  pay  over  certain  moneys  to  an 
assignee;  Mulford  v.  Muller,  3  Abb.  (N.  Y.)  App.  Dec.  330; 
or  when  the  attorney  is  himself  a  party  to  the  transaction; 
Jeanes  v.  Fredenberg,  3  Pa.  Law  J.  R.  199  ;  or  when  the  commu- 
nications were  made  in  presence  of  all  parties  ;  Coveney  v.  Tan- 
nahill,  1  Hill  33  ;  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch.  528  , 
Whiting  v.  Barney,  30  N.  Y.  330  ;  Britton  v.  Lorenz,  45  N.  Y. 
51;  Parish  v.  Gates,  29  Ala.  254;  Hall  v.  Lyon,  27  Mo.  570, 
Carr  v.  Weld,  15  N.  J.  L.  (3  Green)  314;  Rice  v.  Rice,  14  B. 
Mon.  417;  Dun  v.  Amos,  14  Wis.  106;  Hemingway  v.  Smith. 
28  Vt.  701  ;  and  see  Chuboon  v.  State,  21  Gratt.  822;  or  where 
it  does  not  appear  that  the  information  was  not  derived  from 
other  sources  than  the  client's  communications  ;  Chillicothe, 
&c.  Co.  v."  Jameson,  48  111.  281  ;  and  see  various  cases  and  cir- 
cumstances affecting  the  rule  considered  in  Re  Bel  lis,  3  Ben- 
edict, S.  C.  N.  Y.  386;  Woburn  v.  Henshaw,  ior  Mass.  193; 
Higbee  v.  Dresser,  103  Id.  523;  Heaton  v.  Findlay,  21  Pa.  St. 
304;  Fulton  v.  McCracken,  18  Md.  528  ;  Laflin  v.  Herrington 
1  Blackf.  326;  State  v.  Marshall,  8  Ala.  302  ;  De  Witt  v.  Per 
kins,  22  Wis.  473  ;  Dudley  v.  Beck,  3  Id,  =>*  ;  •  ^aniel  v.  Daniel. 
39  Pa.  St.    191;  Proutz  v.  Eaton,  41  xjarb.  409;  McTavish  v 


988      SECONDARY    RULES     OF    EVIDENCE. 

itself,  of  questionable  policy,  and  at  variance  with  the 
practice  in  France,  (^)  and  in  some  of  the  United 
States  of  America,  (V) ' 

(q)  Bonnier,  Traite  des  Preuves,  §  (r)  3  Greenl.  Ev.  §  248,  note  (2),  7th 

179.  Ed.  ;  Appleton,  Evid.  App.  276. 

Dunning,  Anth.  (N.  Y.)  82,  113  ;  Johnson  v.  Daverne,  19 
Johns.  134;  Heister  v.  Davis,  3  Yeates  (Pa.)  4  ;  Graham  v. 
O'Fallon,  4  Mo.  338;  Day  v.  Moore,  13  Gray,  522  ;  Gower  v. 
Emery,  18  Me.  79;  Blackburn  v.  Crawford's,  3  Wall.  175; 
Hager  v  Shindler,  29  Cal.  47;  Phelps  v.  Riley,  3  Conn.  266; 
Mitchell  v.  Bromberger,  2  Nev.  345 ;  Nave  v.  Baird,  12  Ind. 
318  ;  i.  ter,  &c.  Bank  v.  Suydam,  5  How.  (N.  Y.)  Pr.  254; 

Brayton  v.  Chase,  3  Wis.  456  ;  Gallaher  v.  Williamson,  23 
Cal.  331  ;  Granger  v.  Warrington,  8  111.  (3  Gilm.)  299;  Patten 
v.  Mo  r,  29  N.  H.  (9  Fost.)  163;  Clark  v.  Richards,  3  E.  D. 
Smith.  89  ;  Wilson  v.  Godlove,  34  Mo.  337  ;  Hatton  v.  Robin- 
son, 14  rick.  416;  Hoffman  v.  Smith,  1  Cai.  157;  Hull  v 
Lyon,  27  Mo.  570. 

1  In  an  action  for  divorce,  the  evidence  of  a  physician  who 
has  received  confessions  of  adultery  from  the  defendant,  in 
professional  confidence,  is  not  admissible,  under  3  N.  Y.  Rev. 
Stat.  690,  §  104.  Hunn  v.  Hunn,  1  Thomp.  &  C.  (N.  Y.)  499. 
The  N.  Y.  statute  referred  to  is  as  follows:  "  No  person,  duly 
authorized  to  practice  physic  or  surgery,  shall  be  allowed  to 
disclose  any  information  which  he  may  have  acquired  in 
attending  any  patient  in  a  professional  character,  and  which 
information  was  necessary  to  enable  him  to  prescribe  for  such 
patient  as  a  physician,  or  to  do  any  act  for  him  as  a  surgeon. 
But  see,  as  to  whether  the  physician  may  waive  the  privilege, 
quaere,  Johnson  v.  Johnson,  14  Wend.  637.  A  consultation  as 
to  the  means  of  procuring  an  abortion  has  been  held  not  privi- 
leged under  this  statute.  Hewett  v.  Prime,  21  Wend.  79. 
Like  statutes  exist  in  Missouri  (1  R.  S.  1845,  ch.  1S6,  §  20)  ; 
Wisconsin  (R.  S.  1849,  ch.  98,  §75);  Michigan  (R.  S.  1846, 
Ch.  1  ).     In   Iowa,  the   statute  extends  the  privilege  to 

public  officers  in  cases  where  the  public  interest  might  suffer 
by  the  disclosure  (Code  of  Iowa,  185 1,  arts.  2393-2395).  In 
an  action  for  slander,  it  has  been  held  that  a  statement  made 
by  a  physician,  that  an  unmarried  female  is  pregnant,  is  not  a 
privilege.!  communication,  unless  made  in  good  faith  to  one 
reasonably  entitled  to  receive  the  information.  Alpin  v.  Mor- 
ton, 2T    '  -,1,6. 


REJECTED    EVIDENCE.  989 

583.  3  Whether  communications  madeto  spiritual 
advisers  are,  or  ought  to  be,  protected  from  disclosure  in 
courts  of  justice,  presents  a  question  of  some  difficulty. 
It  is  commonly  thought  that  the  decisions  of  the 
judges  in  the  cases  of  R.  v.  Gilham  (s)  and  R.  v.  Wild, 
(t  )  added  to  some  others  that  will  be  cited  presently, 
have  resolved  this  question  in  the  negative  ,  and  the 
practice  is  in  accordance  with  that  notion.  But  R.  v. 
Gilham  only  shows,  that  a  confession  of  guilt  made  by 
a  prisoner,  in  consequence  of  the  spiritual  exhortations 
of  a  clergyman  that  it  will  be  for  his  soul's  health  to 
do  so,  is  receivable  in  evidence  against  him — a  deci- 
sion perfectly  well  founded,  because  such  exhortations 
can  not  possibly  be  considered  "  illegal  inducements 
to  confess."  For  by  this  expression,  as  shown  in  a 
former  chapter,  (u)  the  law  means  language  calculated 
to  convey  to  the  mind  of  a  person  accused  or  sus- 
pected of  an  offense,  that  by  acknowledging  guilt  he 
will  better  his  position,  so  far  as  it  may  be  affected  by 
the  temporal  consequences  of  that  offense.  And  the 
ground  on  which  the  law  rejects  a  confession,  made 
after  such  an  inducement  to  confess,  is  the  reasonable 
apprehension  that,  in  consequenee  of  it,  the  party  may 
have  been  led  to  make  a  false  acknowledgment  ot 
guilt, — an  argument  wholly  inapplicable  where  he  is 
only  told  that,  by  his  avowing  the  truth,  a  spiritual 
benefit  will  accrue  to  him.  R  v.  Wild  is  even  less  to 
the  purpose ;  as  the  party  who  used  the  exhortation 
there  neither  was,  nor  professed  to  be  a  clergyman. 
The  other  ^ases  to  which  allusion  has  been  made,  are 
an  anonymous  one  in  Skinner,  (v)  R.  v.  Sparkes,  (w) 


{s)  1  Moo.  C.  C.  186.  (v)  Skinn.  404. 

(/)  Id.  452.  (:<■)  Cited  in  Du  Bane  v.  Livctte,  I 

(u)  Supra,  ch.  7,  sect.  3,  sub-sect.  3,  Peake,  77. 
§55L 


99Q     SECONDARY    RULES     OF    EVIDENCE. 

Butler  v.  Moore,  (x)  and  Wilson  v.  Rastall.  (j/)  In 
the  first  the  question  was  respecting  a  confidential 
communication  to  a  man  of  law,  which  Lord  Chief 
Justice  Holt,  as  might  have  been  expected,  held 
privileged  from  disclosure ;  adding  obiter  that  it  was 
otherwise  "  in  the  case  of  a  gentleman,  parson,  &c." 
The  second  and  third  are  decisions,  one  by  Buller,  J., 
on  circuit,  and  the  other  by  the  Irish  Master  of  the 
Rolls,  that  confessions  to  a  Prostestant  or  Roman 
Catholic  clergyman  are  not  privileged ;  and  in  the 
fourth,  the  judges  in  banc  say  obiter,  that  the  privilege 
is  confined  to  the  cases  of  counsel,  solicitor,  and  attorney. 
How  far  a  particular  form  of  religious  belief  being  dis- 
favored bylaw  at  the  period  (a.  d.  1802),  affected  the 
decision  in  Butler  v.  Moore,  is  not  easy  to  say  ;  but 
both  that  case  and  R.  v.  Sparkes  leave  the  general 
question  untouched  ;  and  on  the  latter  case  being  cited 
to  Lord  Kenyon,  in  Du  Barre  v.  Livette,  (z)  he  said, 
"  I  should  have  paused  before  I  admitted  the  evidence 
there  admitted."  He  however  decided  that  case  on  the 
ground,  that  confidential  communications  to  a  legal  ad- 
viser were  distinguishable  from  others.  It  is  also  to  be 
observed  that,  the  subject  coming  incidentally  before 
Best,  C.  J.,  in  Broad  v.  Pitt,  (a)  very  shortly  after 
R.  v.  Gil  ham,  he  referred  to  that  case  as  deciding  that 
the  privilege  in  question  did  not  apply  to  a  clergyman  ; 
but  added,  "  I,  for  one,  will  never  compel  a  clergyman 
to  disclose  communications  made  to  him  by  a  prisoner ; 
but,  if  he  chooses  to  disclose  them,  I  shall  receive  them 
in  evidence."  In  a  case  of  R.  v.  Griffin,  (b)  tried  before 
Alderson,  B.,  at  the  Central  Criminal  Court,  part  ot 
the  evidence  against  the  accused,  consisted  of  certain 

(x)  MacNally's  Evid.  253.  (a)  3  C.  &  P.  51 3. 

(><)  4  T.  R.  753,  (i)  6  Cox,  Cr.  Cas.  219. 

(*)  1  Peake,  77. 


REJECTED     EVIDENCE.  991 

conversations  between  her  and  her  spiritual  adviser, the 
chaplain  of  a  workhouse,  relative  to  the  transaction 
which  formed  the  subject  of  accusation.  On  this  evi- 
dence being  offered,  the  judge  expressed  a  strong 
opinion  that  it  was  not  receivable,  adding,  however 
"  I  do  not  lay  this  down  as  an  absolute  rule ;  but  I 
think  such  evidence  ought  not  to  be  given  ; "  and  the 
counsel  for  the  prosecution  accordingly  withdrew  it. 
The  case  is  not  fully  reported,  and  the  result  is  not 
stated.  And  lastly  in  R.  v.  Hay,  (c)  where  the  pris- 
oner was  indicted  for  stealing  a  watch,  the  watch  was 
traced  to  the  possession  of  a  Roman  Catholic  priest, 
who  was  called  as  witness  for  the  prosecution  ;  and 
who,  on  being  asked,  "  From  whom  did  you  receive 
that  watch  ?  "  refused  to  answer,  as  he  said  he  "  re- 
ceived it  in  connection  with  the  confessional."  Hill 
J.,  ruled  that  he  was  bound  to  answer,  on  the  ground 
that  by  the  above  question  he  was  not  asked  to  dis- 
close anything  stated  to  him  in  the  confessional  ;  a 
decision  apparently  unimpeachable  in  itself,  but  which 
leaves  the  general  question  untouched. 

584.  There  can  not,  we  apprehend,  be  much  doubt 
that,  previous  to  the  Reformation,  statements  made  to  a 
priest  under  the  seal  of  confession  were  privileged  from 
disclosure,  except  perhaps  when  the  matter  thus  com- 
municated amounted  to  high  treason.  In  the  old  laws 
of  Hen.  I.  (d)  is  this  passage,"  "  Caveat  sacerdos,  ne  de 
hiis  qui  ei  confitentur  peccata  sua  alicui  recitet  quod 
ei  confessus  est,  non  propinquis  nee  extraneis  ;  quod  si 
fecerit,  debonatur,  et  omnibus  diebus  vite  sue  ignorni- 
niosus  peregrinando  posniteat.'  The  laws  of  Hen.  I. 
are  of  course  not  binding  per  se,  and  are  only  valuable 
as  guides  to  the  common  law  ;  but  it  is  otherwise  with 
the  statute  Articuli  Cleri  (9  Edw.  II.),  c.  10,  which  is 

(4  2  Fost.  &  F.  4.  (</)  Leges  Hen.  I.,  c.  5,  §  17. 


992     SECONDARY    RULES     OF    EVIDENCE 

as  follows.  (e)  "  Quandoque  aliqui  confugientes  ad 
ecclesiam  .  .  .  dum  sunt  in  ecclesia  custodiuntur 
per  armatos  infra  cimiterium,  et  quandoque  infra  eccle- 
siam, ita  arte  quod  non  possunt  exire  locum  sacrum 
causa  superflui  ponderis  deponendi,  nee  permittitur  eis 
necessaria  victuiministrari.  Responsio :  .  .  .  dum 
sunt  in  ecclesia,  custodes  eorum  non  debent  morari  infra 
cimiterium,  nisi  necessitas  vel  evasionis  periculum  hoc 
requirat.  Nee  arcentur  confugi  dum  sunt  in  ecclesia, 
quin  possint  habere  vite  necessaria,  et  exire  libere  pro 
obsceno  pondere  deponendo.  Placet  etiam  Domino 
Regi  ut  latrones  appellators,  quandocumque  voluerint, 
possint  sacerdotibus  sua  facinora  confiteri ;  sed  caveant 
confessorcs,  ne  erronice  hujusmodi  appellatores  infor- 
ment."  In  commenting  on  this  statute,  Sir  Edward 
Coke,  writing,  be  it  remembered,  after  the  Reforma- 
tion, expresses  himself  as  follows  :  (/) — "  Latrones  vel 
appellatores.  This  branch  extendeth  only  to  thieves 
and  approvers  indicted  of  felony,  but  extended  not  to 
high  treasons  :  for  if  high  treason  be  discovered  to  the 
confessor,  he  ought  to  discover  it,  for  the  danger  that 
thereupon  dependeth  to  the  king  and  the  whole  realm  , 
therefore  this  branch  decl'areth  the  common  law,  that 
the  privilege  of  confession  extendeth  only  to  felonies : 
And  albeit,  if  a  man  indicted  of  felony  becometh  an  ap- 
prover, he  is  sworn  to  discover  all  felonies  and  treasons, 
yet  he  is  not  in  degree  of  an  approver  in  law,  but  only 
of  the  offense  whereof  he  is  indicted  ;  and  for  the  rest, 
it  is  for  the  benefit  of  the  king,  to  move  him  to  mercy  : 
So  as  this  branch  beginneth  with  thieves,  extendeth 

(e)  The  above  version  of  the  statute  From  Original  Records  and  Authentic 

is  taken  from   the   valuable    work   en-  Manuscripts,"    A.  D.    iSio  et  seq.     It 

titled  "Statutes  of  the  Realm,  printed  differs    in    several   respects  from  that 

by   command   of  his    Majesty,    King  given  by  Sir  Edward  Coke  in  the  and 

George  the  Third,  in   pursuance  cf  an  Institute. 

Address  of  the    House  of  Commons  :  (/)  2  Inst.  629 


REJECTED    EVIDENCE.  993 

only  to  approvers  of  thievery  or  felony,  and  not  to 
appeals  of  treason  ;  for  by  the  common  law,  a  man  in- 
dicted of  high  treason  could  not  have  the  benefit  of 
clergy  (as  it  was  holden  in  the  king's  time,  when  this 
act  was  made),  nor  any  clergyman  privilege  of  con- 
fession to  conceal  high  treason  :  and  so  was  it  resolved 
in  7  Hen.  V.  (Rot.  Pari,  anno  7  Hen.  V.  nu.  13) 
whereupon  Friar  John  Randolph,  the  Queen  Dowa- 
ger's confessor,  accused  her  of  treason,  for  compassing 
of  the  death  of  the  king :  And  so  was  it  resolved  in 
the  case  of  Henry  Garnet  (Hil.  3  Jac),  superior  of 
the  Jesuits  in  England,  who  would  have  shadowed  his 
treason  under  the  privilege  of  confession,  &c. ;  and 
albeit  this  act  extendeth  to  felonies  only,  as  hath  been 
said,  yet  the  caveat  given  to  the  confessors  is  observ- 
able, ne  erronice  informent."  We  cite  this  passage 
to  show  the  common  law  on  this  subject ;  but  it  is 
very  doubtful  whether  the  caveat  at  the  end  of  the 
above  enactment,  was  inserted  to  warn  the  confessoi 
against  disclosing  the  secrets  of  the  penitent  to 
others.  The  grammatical  construction  and  context 
seem  to  show,  that  it  was  to  prevent  his  abusing  his 
privilege  of  access  to  the  criminal,  by  conveying 
information  to  him  from  without ;  and  the  clause  is. 
translated  accordingly  in  the  best  edition  of  the 
statutes,  (o-) 

585.  If  it  be  an  error  to  refuse  to  hold  sacred  the 
communications  made  to  spiritual  advisers,  an  oppo- 
site and  greater  error  is  the  attempt  to  confine  the 
privilege  to  the  clergy  of  some  particular  creed. 
Courts  of  municipal  law,  are  not  called  on  to  deter- 
mine the  truth  or  merits  of  the  religious  persuasion 
to  which  a  party  belongs ;    or  to   inquire  whether  it 

{g)  The  edition  referred  to  in  note       Statutes,  A.  D.  1762. 
(r).     See  also  Ruff  head's  edition  of  the 
<>3 


994    SECONDARY    RULES    OF    EVIDENCE. 

exacts  auricular  confession,  advises,  or  permits  it— 
the  sole  question  ought  to  be,  whether  the  party  who 
bona  tide  seeks  spiritual  advice  should  be  allowed  it 
freely.  By  a  statute  of  New  York,  (/i)  '  "  No  minister 
of  the  Gospel,  or  priest  of  any  denomination  whatso- 
ever, shall  be  allowed  to  disclose  any  confessions 
made  to  him  in  his  professional  character,  in  the  course 
of  discipline  enjoined  by  the  rules  or  practice  of  such 
denomination."  A  similar  statute  exists  in  Missouri 
and  some  other  states  ;  (z)  and  the  like  principle  is 
recognized  in  France.  (£)  2 

586.  40.  Social.  The  applications  of  this  principle 
to  social  life  are  few.  The  principal  instance  is  in  the 
case  of  communications  between  husband  and  wife. 
Such,  says  Professor  Greenleaf,  (/)  belong  to  the  class 
of  privileged  communications,  and  are  therefore  pro- 
tected, independently  of  the   ground  of  interest  and 

(A)  1  Greenl.  Evid.  p.  326,  §  247,  §  179.  who  a(Ws'  "  Le  systeme  con- 
note (1),  7th  Ed.;  Appleton,  Evid.  traire  detruirail  la  confiance,  qui  seule 
App.  275.  peut  amener  le  repentir,  en  donnant 

(e)  1  Greenl.  Evid.  p.  326,  §  247,  note  au  pretres  les  apparences  d'un  dela- 

(1),    7th   Ed.  :  Appleton,  Evid.    App.  teur,  d'autant  plus  odieux  qu'il  serait 

276,  277.  revetu  d'un  caractere  sacre." 

(A)  Bonnier,    Traite    des    Preuves,  (/)   I  Greenl.  Evid.  §  254,  7th  Ed. 


1  3  R.  S.  5th  Ed.  p.  690,  §  103.  A  similar  statute  exists  in 
Wisconsin  (R.  S.  1849,  ch.  98,  §  75);  in  Missouri  (R.  S.  1845, 
ch.  186,  §  19)  ;  in  Michigan  (R.  S.  1846,  ch.  102,  §  85) ;  and  in 
Iowa;    1  Code,  1851,  art  2393. 

2  1  Greenleaf  on  Evidence,  §§  229,  247.  In  People  v.  Phil- 
lips, before  Hon.  DeWitt  Clinton,  mayor  of  New  York,  court 
of  General  Sessions,  June,  1813  (reported  in  1  Southwestern 
Law  Journal,  which  the  editor  has  been  unable  to  procure), 
it  is  said -to  have  been  held  that  a  communication  to  a 
religious  adviser  was  not  privileged  ;  and  in  Commonwealth 
v,  Drake,  15  Mass.  161,  it  was  held  that  confessions  of  a  party 
voluntarily  made  to  members  of  the  same  churqh,  are  not 
privileged,  and  may  be  given  in  evidence  on  his  trial  for  the 
crime  or  misdemeanor  so  confessed  by  him. 


REJECTED    EVIDENCE.  995 

identity,  which  precludes  the  parties  from  testifying  for 
or  against  each  other.  The  happiness  of  the  married 
state,  reqj  res  that  there  should  be  the  most  unlimited 
confidence  between  husband  and  wife;  and  this  con- 
fidence the  law  secures,  by  providing  that  it  shall  be 
kept  for  ever  inviolable  ;  that  nothing  shall  be  extracted 
from  the  bosom  of  the  wife,  which  was  confided  there 
by  the  husband.  Therefore,  after  the  parties  are  sepa- 
rated, whether  it  be  by  divorce,  or  by  the  death  of  the 
husband,  the  wife  is  still  precluded  from  disclosing  any 
conversations  with  him  ;  though  she  may  be  admitted  to 
testify  to  facts,  which  came  to  her  knowledge  by  means 
equally  accessible  to  any  person  not  standing  in  that 
relation."  And  the  16  &  17  Vict.  c.  83,  which  renders 
husbands  and  wives  competent  and  compellable  wit- 
nesses for  or  against  each  other  in  civil  cases,  contains 
a  special  enactment,  sec.  3,  that  "  No  husband  shall 
be  compellable  to  disclose  any  communication  made  to 
him  by  his  wife  during  the  marriage,  and  no  wife  shall 
be  compellable  to  disclose  any  communication  made  to 
her  by  her  husband    during   the  marriage,"1  and  the 

1  The  earliest  instance  of  elicited  evidence  on  record,  how- 
ever, was  in  exactly  the  reverse  of  the  rule  now  obtaining. 
When  the  Lord  called  unto  Adam  (Genesis  iii.  9)  in  the  garden 
of  Eden,  Adam  was  allowed  to  testify  concerning'  confidential 
communications  between  husband  and  wife.  "  And  the  man 
said,  The  woman  whom  thou  gavest  to  be  with  me,  she  gave 
me  of  the  tree,  and  I  did  eat  "  (Id.  v.  13).  As  to  the  admissibil- 
ity of  such  testimony,  see  the  eloborate  and  exhaustive  argu- 
ments of  Mr  Evarts  against  such  admissibility,  and  of  Messrs. 
Beach  and  Prior  in  favor  thereof,  and  cases  cited  in  the  Til- 
ton-Beecher  trial,  Abbott's  edition,  vol.  ii.,  pp.  48,  66,  86,  103. 
The  Court,  Neilson,  J.  (Id.  p.  i  16),  decided  the  question  in  the 
following  words  :  "  In  determining  the  question  raised  by 
his  objection,  the  court  holds  : 

"I.  That  the  plaintiff  is  competent  to  be  sworn  and  to  tes- 
tify in  his  own  behalf. 


996     SECONDARY    RULES    OF    EVIDENCE. 

evidence  of  neither  husband  nor  wife  will  be  received, 
to  disprove  the  fact  of  sexual  intercourse  having  taken 
place  between  them  (iji) — a  rule  justly  designated  by 
Lord  Mansfield  as  "founded  in  decency, morality,  and 
policy."  (ii) 

But  secrets  disclosed  in  the  ordinary  course  of  busi- 
ness, or  the  confidence  of  friendship,  are  not  protected. 

(?) 

587.  Courts  of  justice,  as  has  been  shown  in  the 
Introduction  to  this  work,  (/)  possess  an  inherent  power 
of  rejecting  evidence,  which  is  tendered  for  the  purpose 
of  creating  expense,  or  causing  vexation  or  delay.  Such 
malpractices  are  calculated  to  impede  the  administra- 
tion of  the  law,  as  well  as  to  injure  the  opposite  party. 

(m)    R.   v.    Reading,    Cas.    Temp.  (;/)  Goodwright  d.  Stevens  v.  Moss, 

Hardw.  79  ;  R.  v.  Rook,  1  Wils.  340  ;  Cowp.  594. 

R.  v.  Luffe,  8   East,  192  ;  R.  v.   Kea,  (0)  See  the  judgment  of  Lord  Ken- 
it  Id.  132  ;  Cope   v.  Cope,  I   Moo.  &  yon  in  Wilson  v.  Rastall,  4  T.  R.  758, 
R.  269  ;  R.  v.  Sourton,  5  A.  &  E.  180  ;  and  the  cases  from  the  State  Trials 
Wright    v.    Holdgate,   3    Carr.   &   K.  there  referred  to. 
158.  (/)  Introd.  pt.  2,  §  47. 

"  II.  That,  touching-  the  principal  question  in  issue,  he  is 
not  competent  to  testify  to  any  confidential  communications. 

"III.  It  is  considered  that  this  qualified  direction  respects 
the  present  state  of  our  law  of  evidence,  as  the  same  has  re- 
ceived legislative  and  judicial  expression,  and  also  respects 
what  may  remain  of  the  rule  which  imposes  silence  or  restraint 
by  reason  of  the  marital  relation,  and  on  grounds  of  public  in 
terest  or  policy." 


AUTHORITY    OF    RES    JUDICATA.        ggj 


CHAPTER    IX. 

AUTHORITY    OF    RES   JUDICATA. 

PARAGRAPH 

Maxim    "  Res  judicata  pro  veritate  accipitur" 588 

Res  judicata 5S9 

Difference  between  the  substantive  and  judicial  portions  of  a  record   .  590 

Judgments  null  in  respect  of  what  is  contained  in  them         .         .         .  591 

Verdicts 591 

Awards 591 

Cases  where  the  maxim  applies          ........  592 

1.  The   thing  must  be  the  same 592 

2.  The  person  must  be  party  or  privy  to  the  judgment        .         ,        .  592 
Exceptions     ...         .                  ,  593 

1.  Judgments  iu  rem '     593 

2.  Other  instances  .         , 593 

3.  Judgments  to  be  conclusive  must  be  pleaded,  if  there  be  opportu- 

nity      594 

4.  Judgments  may  be  impeached  for  fraud         .         .  595 

588.  The  maxim  "  Res  judicata  pro  veritate  acci- 
pitur," (a)  is  a  branch  of  the  more  general  one,  "  In- 
terest reipublicae  ut  sit  finis  litium  : "  (<$)  and  the  reasons 
which  have  led  to  the  universal  recognition  of  both, 
are  explained  in  the  Introduction  to  this  work. 

589.  "  Res  judicata,"  says  the  Digest,  (c)  "  dicitur, 
qusefinem  controversiarumpronunciationejudicis  acci- 
pit :  quodvel  condemnatione  vel  absolutione  contingit." 
But  in  order  to  have  the  effect  of  res  judicata,  the  de- 
cision must  be  that  of  a  court  of  competent  jurisdiction, 
concurrent  or  exclusive, — "judicium  a  non  suo  judice 
datum,  nullius   est  momenti."^)1     The  decisions   of 

(a)  Introd.  pt.  2,  §  44.  (c)  Dig.  lib.  42,  tit.  I,  1.  1. 

(*)  Introd.  pt.  2,  §§  il,  43.  (d)  10  Co.  76  b. 

1  A  sentence  pronounced  by  one  who  is  not  a  proper  judge, 
is  not  binding. 


998     SECONDARY    RULES     OF    EVIDENCE. 

such  tribunals  are  conclusive  until  reversed;  but  no 
decision  is  final  unless  it  be  pronounced  by  a  tribunal 
from  which  there  lies  no  appeal,  or  unless  the  parties 
have  acquiesced  in  the  decision,  or  the  time  limited  by 
law  for  appealing  has  elapsed,  (e)  Moreover,  the  con- 
clusive effect  is  confined  to  the  point  actually  decided, 
and  does  not  extend  to  any  matter  which  came  col- 
laterally in  question.  (/)  It  does,  however,  extend  to 
any  matter  which  it  was  necessary  to  decide,  and 
which  was  actually  decided,  as  the  groundwork  of  the 
decision  itself,  though  not  then  directly  the  point  at 
issue.  (<§r)1 

590.  The  principle  in  question  must  not  be  con- 
founded, either  with  the  rule  of  law  which  requires 
records  to  be  in  writing,  (Jt)  or  with  its  conclusive  pre- 
sumption that  they  are  correctly  made,  (i  )  The  mode 
of  proving  judicial  acts,  is  a  different  thing  from  the 
effect  of  those  acts  when  proved;  and  the  rules  regulat- 
ing the  effect  of  res  judicata  would  remain  exactly  as 
they  are,  if  the  decisions  of  our  tribunals  could  be  es- 
tablished by  oral  testimony.  (£)     In  truth,  the  record  of 

(<♦)  t  Ev.  Poth,  Part  4,  ch.  3,  sect.  3,  (k)  The  ancient  laws  of  Wales  re- 
art  1.  quired  in  general  the  testimony  of  two 

{/)  Per  de  Grey,  C.   J.,  delivering  witnesses,  but  one  of  the  exceptions  to 

the  opinion  of  the  Judges  to  the  House  this  rule  was  the   case   of  a  judge  re- 

of  Lords,  in    the    Duchess    of   Kings-  specting  his  judgment.    "  If,"  says  the 

ton's  case,  ri   St.  Tr.   261  :  1  Rol.  Ab.  Venedotian  Code,  bk.  2,  c.  5,§  4,  "one 

876  ;    Blackham's    case,    1    Salk.   290-  of  two   parties  between  whom   a  law- 

1  ;  K.  v.   Knaptofft,  2  B.  &  C.  S83  ;  suit  has  taken  place,  deny  the  judg- 

Carter  v.  James,  13  M.  &  W.  137.  ment,  and  the   other  acknowledge  it, 

(g )     R.     v.       Hartington       Middle  the  statement  of  the  judge  is   in   that 

Quarter,  4  E.  &  Bl.  7S0,  704.  case    final    respecting   his   judgment." 

(h)  Bk.  2,  ch.  3,  sect.  I,  §  21S.  See   also   the    Dimetian  Code,   bk.  2, 

(i)  Supra,  ch.  2,  sect.  2,  sub-sect.  3  ch.  5,^4 
8  343. 

1  To  make  a  matter  res  judicata,  there  must  be  a  concurrence 
of  the  four  conditions  following,  namely  :  1st.  Identity  in  the 
thing  sued  for;   2d.   Identity  in  the  cause  of  action;  3d.  Iden- 


RES    JUDICATA.  999 

a  court  of  justice  consists  of  two  parts,  which  may  be 
denominated  respectively  the  substantive  and  judicial 
portions.  In  the  former — the  substantive  portion — the 
court  records  or  attests  its  own  proceedings  and  acts. 
To  this,  unerring  verity  is  attributed  by  the  law,  which 
will  neither  allow  the  record  to  be  contradicted  in  these 
respects;  (/)  nor  the  facts,  thus  recorded  or  attested, 
to  be  proved  in  any  other  way  than  by  production  of 
the  record  itself,  or  by  copies  proved  to  be  true  in  the 
prescribed  manner.  {711) — "  Nemo  potest  contra  re- 
cordum  verificare  per  patriam."(#) x — "Quod  per  re- 
cordum  probatum,  non  debet  esse  negatum."  (0)  2  In 
the  judicial  portion,  on  the  contrary, the  court  expresses 
its  judgment  or  opinion  on  the  matter  in  question,  and 
in  forming  that  opinion  it  is  bound  to  have  regard, 
only  to  the  evidence  and  arguments  adduced  before  it 
by  the  respective  parties  to  the  proceeding, — either  of 
vhom  may,  in  most  cases,  appeal  from  such  judgment 
to  that  of  a  superior  tribunal.  Such  a  judgment,  there- 
fore, with  respect  to  any  third  person,  who  was  neither 
party  nor  privy  to  the  proceeding  in  which  it  was  pro- 
nounced, is  only  res  inter  alios  judicata  :  and  hence  the 
rule,  that  it  does  not  bind,  and  is  not  in  general  evi- 
dence, against  any  one  who  was  not   such  party  or 

(/)  Co.  Litt.  260   a;    Finch,    Law,  (;«)  See  several  instances  collected. 

231  ;  Gilb.  Ev.   7,  4th   Ed.;  4  Co.  71  1  Phill.  Ev.  441,  10th  Ed. 

a;  Litt.   R.    155;  Hell.   107;  I    East,  (»)  2  Inst.  380. 

355  ;  2  B.  &  Ad.  362.  (0)  Branch,  Max.  186. 


tity  of  persons  and  parties  to  the  action  ;  4th.  Identity  of  the 
quality  in  the  persons  for  or  against  whom  the  claim  is  made. 
Atchison,  &c.  R.  R.  Co.  v.  Commissioners,  12  Kan.  127.  See 
these  points  considered  separately  in  the  text. 

1  No  one  can  verify  by  the  country  against  a  record,  e.  g., 
the  issue  upon  matter  of  record  can  not  be  to  the  country. 

a  What  is  proved  by  the  record  should  not  be  denied 


iooo    SECONDARY    RULES    OF    EVIDENCE. 

privy.(p)1  Bentham,  indeed,  contends  that  res  inter 
alios  judicata  ought  to  be  admitted,  and  its  weight  es- 
timated by  the  jury;(y)  but — without  stopping  to 
inquire,  whether  the  cases  in  which  it  is  receivable  as 
evidence  between  third  parties  might  properly  be  ex- 
tended— the  general  principle  running  through  our 
law,  which  requires  the  best  evidence,  (r)  and  rejects 
all  evidence  where  there  is  no  reasonable  and  proximate 
connection  between  the  principal  and  evidentiary 
facts,  (s)  is  quite  as  applicable  to  res  judicata  as  to 
any  other  species  of  proof. 

591.  But  the  judgment  of  a  tribunal  of  competent 
jurisdiction,  may  be  null  and  void  in  itself  in  respect 
of  what  is  contained  in  it.  (t)  1.  When  the  object 
of  the  decision  it  pronounces  is  uncertain — "  Sententia 
debet  esse  certa: — e.  g„  a  judgment  condemning  the 
defendant  to  pay  the  plaintiff  what  he  owes  him, 
would  be  void  ;  though  it  would  be  sufficient  if  it  con- 
demned the  defendant  to  pay  what  the  plaintiff  de- 
manded of  him,  and  the  cause  of  demand  appeared  on 

(/>)    2   Smith,   Load.   Cas.   661,  664  suprh,  §  292. 

et  seq.  5th  Ed.  ;  per  De  Grey,  C.  J.,  (s)  Bk.  i,  pt.  1,  g§  88,  qo. 

in  the  Duchess  of  Kingston's  case,  11  (/)  1  Ev.  I'oth.  Part  4,  ch.  3,  sect.  3, 

St.  Tr.  261  ;  B.  N.  P.  231-2.  Art.  2,  §  1,  n.  18.     See  also   per  Parke, 

(q)  3  Benth.  Jud.  Ev.  431-2.  B.,  in    R.  v.  Blakemore,  2   Den.  C.  C. 

(r)   Bk.    1,  pt.    I,  §§   87  ct  seq.  and  420,  421. 

'•Bradley  v.  Johnson,  49  Ga.  412  ;  Geary  v.  Simmons,  39 
Cal.  224;  Cannon  v.  Brume,  45  Ala.  262;  Spencer  v.  Dearth, 
43  Vt.  98;  Phelan  v.  Gardner,  43  Cal.  306;  Shepardson  v. 
Gary,  29  Wis.  34;  Rogers  v.  Higgins,  57  111.  244;  Chesapeake, 
&c.  Co.  v.  Gittings,  36  Md.  276.  Held  applicable  under  cer- 
tain circumstances  as  to  a  justice's  court.  Gates  v.  Preston, 
41  N.  Y.  113.  A  judgment  binds  not  only  the  parties  to  it, 
but  all  persons  claiming  under  it,  and  is  also  binding  upon 
privies  in  interest,  law,  or  estate.  Finney  v.  Bovd,  26  Wis. 
366.  A  person  who  actively  prosecutes  the  action,  is  bound 
by  the  judgment,  though  not  technically  a  party  thereto. 
Stoddard  v.  Thompson,  31  Iowa,  Sc 


RES    JUDICATA.  ioci 

the  record  of  the  proceedings.  («)  '  2.  When  the  ob- 
ject of  the  adjudication  is  anything  impossible.  (V)— 
"Lex  non  cogit  impossiblia."  (y)  3.  When  a  judg- 
ment pronounces  anything  which  is  expressly  con- 
trary to  the  law,  i.  e.,  if  it  declares  that  the  law  ought 
not  to  be  observed  :  if  it  merely  decides  that  the  case 
in  question  does  not  fall  within  the  law,  though  in 
truth  it  does  so,  the  judgment  is  not  null,  it  is  only 
improper,  and  consequently  can  only  be  avoided  by 
the  ordinary  course  of  appeal,  (z)  4.  When  a  judg- 
ment contains  inconsistent  and  contradictory  disposi- 
tions, (a)  5.  When  a  judgment  pronounces  on  what 
is  not  in  demand.  (J?) — "  Judex  non  reddit  plus,  quam 
quod  pctens  ipse  requirit,"  and  "  Droit  ne  done  pluis 
que  soit  demande."  (c)  "' 

The  same  principles  apply  to  other  things  which 
partake  of  the  nature  of  judgments.  Thus  a  verdict 
that  finds  matter  uncertainly  or  ambiguously  is  suffi- 
cient; (d)  and  the  same  holds  when  it  is  inconsistent  .(e) 
In  the  1 1  Hen.  IV.  2  A.  pi.  3,  on  the  trial  of  a  writ  of 
conspiracy  against  two,  the  jury  found  one  guilty  and 
the  other  not;  whereupon  the  presiding  judge  (_/") 
said  to  them,  "  Vous  gents,  vre  verdit  esc  contrariant 
en  luy  m,  car  si  Tun  ne  soit  my  culp,  ambid  sont  de 
rien  culp,  p  c  q  le  bre  supp  q  ils   conspir   ensemble, 

(«)  1  Ev.  Poth.  in  loc.  cit.  (c)  2  Inst.  2S6. 

(x)  Id.  n.  21.  (d)  Co.  Lilt.  227  a. 

(;')   Hob.  96.  (e)  4S  Edw.  III.  25  a  ;  Hob.  262. 

(z)  1  Ev.  Poth.  in  loc.  cit.  n.  22.  (/)    The     book     says    Thir.     Qu. 
{a)  Id.  n.    23;  Cooper  v.  Langdon,      Thirning,  C.  J.,  or  Thirwit,  J.?     Both 

10  M.  &  W.  7S5.  seem  lo  have    been    on    the   bench  at 

(b)  1  Ev.  Poth.  in  loc.  cit.  n.  24.  that  time.     See  Dugdale,  Orig.  Jud. 

1  Or  when  matters  are  embraced    which    have    transpired 
since  the  former  proceeding.     Dyer  v.  Goran,  29  Iowa,  126. 

2  A  judge  does  not  render  judgment  tor  more  than  is  de- 
manded. 


:oo2     SECONDARY    RULES     OF    EVIDENCE. 

chesc  ovc  aut,  mes  pur  cc  que  vous  n'estes  appritz  de 
ley,  soit  melior  avi5  de  vre  verdit,  &c."  So  if  a  ver- 
dict pronounces  on  what  is  not  in  issue,  (^g)  A  ver- 
dict concluding  against  law  is  void ;  (Ji)  but  when  a 
jury  find  matter  of  fact  and  conclude  against  law,  the 
verdict  is  good  and  the  conclusion  ill.  (7)  And, 
lastly,  of  awards.  It  is  a  principle  that  awards  must 
be  certain ;  {Ji)  and  if  an  award  contains  inconsistent 
provisions,  (/)  or  directs  what  is  impossible,  (111)  or 
what  is  illegal,  {it)  it  can  not  be  enforced  by  action, 
and  may  be  set  aside  on  motion. 

592.  "  Cum  quoeritur,"  again  to  quote  from  the 
Digest,  (o)  "  hose  exceptio  "  (scil.  rei  judicata?)  "  noceat, 
necne  ?  inspiciendum  est  an  idem  corpus  sit ;  quantitas 
eadem,  idem  jus;  et  an  eadem  causa  petendi, et  eadem 
conditio  personarum  ;  quae  nisi  omnia  concurrent,  alia 
res  est."  First,  then,  in  order  to  exclude  a  party  whose 
demand  has  been  dismissed,  from  making  a  fresh  de- 
mand, on  the  ground  that  the  matter  is  res  judicata 
the  thing  demanded  must  be  the  same.  But  this 
must  not  be  understood  too  literally.  For  instance, 
although  the  flock  which  the  plaintiff  demands  now, 
does  not  consist  of  the  same  sheep  as  it  did  at  the 
time  of  the  former  demand,  the  demand  is  held  to  be 
for  the  same  thing,  and  therefore  is  not  receivable.  (/>) 
And  so,  a  party  is  held  to  demand  the  same  thing 
when   he  demands  anything  which  forms  a  part   of 

(g)  I  Leon.  67,  pi.  86;  Hob.  53  ;  1  (m)  Id.    2S8  ;    Wats.    Awards,    234 

Rol.  257.  3rd  Ed. 

(A)  22   Ass.    pi.    60 ;    28   Id.  pi.  4 ;  («)  Russ.  Arb.  391,  3rd  Ed. ;  WaU 

Hob    112-13.  Awards,  234,  3rd  Ed. 

(*)  Plowd.  114  ;  Dy.   106  b,  pi.  20;  (0)  Dig.  lib.  44,  lit.  2,  11.  12,  13,  14 

I94  a,  pi.  32  ;  Jenk.  Cent.  I,  Cas.  35  ;  See  also    1    Ev.    Poth.    Part   4,   eh.  3 

4  Mod.  ic  sect.  3,  art.  4.  11.   40;  Bonnier,  Traiti 

(k)  Watson,  Awards,  204,  3rd.  Ed. ;  des   Preuves,  §  683  ;  Code  Civil,  liv 

Russ.  Arbitr.  275,  3rd  Ed.  3,  tit.  3,  ch.  6,  sect.  3. 

(/)  Id.  289.  (/)  I  Ev.  Poth,  552. 


RES    JUDICATA.  1003 

it.  (q)  '  But,  secondly,  in  order  that  the  maxim,  res 
judicata,  shall  apply,  there  must  be"eadem  conditio 
personarum."  And  therefore,  as  we  have  seen,  if  the 
person  whom  it  is  sought  to  affect  by  a  judgment, 
was  neither  party  nor  privy  to  the  proceedings  in  which 
it  was  given,  it  is  not  in  general  even  receivable  in 
evidence  against  him.  (V)  So  a  judgment  against  a 
party  in  a  criminal  case,  is  not  evidence  against  him 
in  a  civil  suit,  even  of  the  fact  on  which  the  convic- 
tion must  have  proceeded,  (s)  Nor  is  a  judgment  of 
acquittal  evidence  in  his  favor ;  (/)  for  the  parties  are 
not  the  same.  So,  in  an  appeal  of  murder,  the  indict- 
ment was  not  evidence  against  the  defendant.  (11) 
And  so,  on  an  indictment  against  A.,  for  perjury  com- 
mitted by  him  on  the  trial  of  an  indictment  against 
B. ;  the  record  of  the  proceedings  at  that  trial,  with  the 
finding  of  the  jury,  and  the  judgment  of  the  court, 
pronounced  thereon  in  accordance  with  the  evidence 
then  given  by  A.,  is  no  defense.  (V) 2 

593.  An  important  exception  to  this  rule  exists  in 
the  case  of  judgments  in  rem,  i.  c,  adjudications  pro- 
nounced upon  the  status  of  some  particular  subject 
matter,  by  a  tribunal  having  competent  authority  for 

(q)  Id.  W  Tayl.     Ev.     §     1503,    4th    Ed.  ; 

(r)  Sttpra,  §  590.  Stark.  Ev.  332,  4th  Ed.     "Acta  facta 

(s)  Per  Blackburn,  J.,  delivering  tne  in  causa  civili,  non  probant  in  judicio 

opinion  of  the  Judges  (in  Dom.  Pioc.)  criminali."    Masc.  de  Prob.  Concl.  34. 

in  Castrique  v.  Imrie,  L.    Rep.,  4  Ap.  n.  I. 

Ca.  414,  434.     See  Tayl.  Ev.  §  1505,  («)  Samson  v.  Yardly,  2  Keb.  223. 

4th  Ed. ;  Stark.  Ev.  361,  4th  Ed.  ;  2  (x)  Hob.  201  ;  Titus  Oates'  case.  10 

Phill.  Ev.  27,  10th  Ed.  Ho.  St.  Tr.  1136-7. 

1  The  identity  of  the  subject-matter  of  the  suit  is  to  be  de- 
termined, not  by  the  pleadings,  but  by  the  records,  or  by  other 
proof  on  the  trial.      Garrott  v.  Johnson,   11    G.  &    M.    182 
Whitehurst  v.  Rogers,  38   Md.  503;  Streeks  v.  Dver,  39  M 
424. 

*  Bigelovv  on  Estoppel,  p.  3^- 


1004     SECONDARY    RULES    OF    EVIDENCE. 

that  purpose,  (y)  Such  judgments  the  law  has,  from 
motives  of  policy  and  general  convenience,  invested 
with  a  conclusive  effect  against  all  the  world.  At  the 
head  of  these  stand  judgments  in  the  Exchequer,  of 
condemnation  of  property  as  forfeited,  adjudications 
of  a  Court  of  Admiralty  on  the  subject  of  prize,  &c. ' 
In  certain  instances,  also,  judgments  as  to  the 
status  or  condition  of  a  party,  are  receivable  in  evi- 
dence against  third  persons,  although  they. are  not 
conclusive.  Thus  in  an  action  against  an  executor 
sued  on  a  bond  of  his  testator,  a  commission  finding 
the  testator  lunatic  at  the  time  of  the  execution  of 
the  bond,  is  prima  facie  evidence  against  the  plaintiff, 
though  he  was  no  party  to  it.  (z)  And,  by  analogy 
to  the  general  rule  of  res  inter  alios  acta,  judgments 
and  judicial  proceedings  inter  alios,  are  receivable  on 
questions  of  a  public  nature,  and  in  other  cases  where 
the  ordinary  rules  of  evidence  are  departed  from,  (a)  2 
Judgments  not  in  rem  are  said  to  be  judgments 
in  personam.  (J?) 

(y)  2  v             Lea  !.  Ctts.  662,  5th  Ed.  the  tribunal  should  act  within  its  juris- 

The  authority  of  the  tribunal   in  such  diction.     Per  Blackburn,  J.,  Castrique 

cases,  i        i     to  rest  on  the  following  v.  Imrie,  L.  Rep.,  4  Ap.  Ca.  414,  429. 

grounds,  viz.  : — 1st,  that  the   subject-  (c)  Faulder  v.  Silk,  2    Campb.  126  ; 

mattei      :     uld   be    within    the  lawful  Dane    v.   Lady   Kirkwall,   3  C.  &   P. 

control  of  ill                under  the  autho-  683. 

riiy  ol                    e    tribunal   sits  ;  2nd  (a)  Supra,  ch.  5,  §  510. 

that    the                 jn  authority   of   that  (b)  J.  \Y.  Smith,  2  Lead.  Cases,  661, 

state  sh                        nferred  on  the  tri-  5th    Ed.,    suggests   that   inter  partes 

bunal,  j.              ion  to  decide  as  to  the  would  be  better;  but  the  classification 

disposition  of  the  tiling  ;  and,  3d,  that  of  judgments  into  those    in   rem  and 

Megee  v.  Beirne,  39  Pa.  St.  50. 
a  And  iigelow  on  Estoppels,  p.   11;  Cooper  v.  Rey- 

nolds, to  Wall.  308;  Megee  v.  Beirne,  39  Pa.  St.  50  ;  Barber 
v  Hartford  Bank,  9  Conn.  407  ;  Myers  v.  Beeman,  9  Ired.  116  ; 
Ormond  v.  Move  n  Ired.  564;  Keiffer  v.  Ehler,  iS  Pa.  St. 
388;  Certain  Logs  of  Mahogany,  2  Sum.  589;  Dow  v.  San- 
born. rSi. 


RES    JUDICATA.  1005 

594.  Conclusive  judgments  are  a  species  of  estop- 
pels ;  seeing  that  they  are  given  in  a  matter  in  which 
the  person  against  whom  they  are  offered  as  evidence 
has  had,  either  really  or  constructively,  an  opportunity 
of  being  heard,  and  disputing  the  case  of  the  other 
side.  There  is  certainly  this  difference,  that  estoppels 
are  usually  founded  on  the  voluntary  act  of  a  party  ; 
whereas  it  is  a  pnesumptio  juris  that  "judicium  redditur 
in  invitum."  (c)  '  Moreover,  when  judgment  has  been 
obtained  for  a  debt,  no  other  action  can  be  maintained 
upon  it  while  the  judgment  is  in  force,  "  quia  transit 
in  rem  judicatam."  (d)  Like  other  estoppels  by 
matter  of  record,  and  estoppels  by  deed,  judgments,  in 
order  to  have  a  conclusive  effect,  must  be  pleaded  if 
there  be  opportunity,  otherwise  they  are  only  cogent 
evidence  for  the  jury.  (<?)  2 

those  in  personam,  has  been  recognized  quels  elle  s'applique,  reposent  sur  les 

by  statute.     See  24  &  25  Vict.  c.  10,  s.  niemes  bases  que  les  regies  sur  l'effet 

35.  des  conventions.     On   l'a  souvent  dit 

(c)  Co.    Litt.    248b;  5  Co.    2Sb ;  10  avec    raison,    judiciis    contrahimus." 

Id.   94b.     According  to  some   foreign  Bonnier,  Traite  des  Pieuves,  ^  680. 
jurists,  judgments  partake  of  the  na-  (J)  Pollexf.    641.       See   also  6  Co 

ture  of  contracts.     "  Cette  importante  46a. 

presomption     (autorite    de    la   chose  (e)  2  Smith,    Lead.    Cas.  670,  673, 

juge'e)  se   rattachant  au  fond  du  droit,  5th  Ed. ;  and   supra,  ch.  7,  sect.  2,  $ 

autant  qu'a  la  preuve,  les   regies  sur  544. 

1'efFect  des  jugements,  e'est  a  dire  sur  (/)  14  Hen.  VIII.  8a  ;  39  Hen.  VI, 

les  personnes  et  sur  les    objets   aux-  50,  pi.  15  ;   1  Keb.  546. 

'Judgment,  in   presumption  of  law,  is  given    against   the 
party  contrary  to  his  own  inclination. 

2  The  test  of  the  identity  (see  ante,  note  1,  p.  100),  it  seems,  will 
be  whether  the  proof  which  would  fully  support  the  one  case 
would  support  the  other.  Gardner  v.  Buckbee,  3  Cowen,  121  ; 
Burt  v.  Sternburgh,  4  Cow.  559  ;  Ricker  v.  Hooker,  35  Vt, 
457  Perkins  v.  Walker,  19  Vt.  144;  Marsh  v.  Pier,  5  Rowle, 
273  Norton  v.  Huxley,  13  Gray,  285  ;  Packet  Co.  v.  Sickels, 
5  Wall.  580;  Phillips  v.  Berick,  16  Johns.  136.  But  consul 
as  to  what  may  or  may  not  be  estoppel  by  judgment,  Ar 
nold  v.  Arnold,  17  Pick  .4;  Clcaton  v.  Chambleis,  5  Rand.  (Va. , 
86;  Clark  v.  Young,  1   Cranch   181;  Goodrich  v.  City  of  Chi 


xoo6     SECONDARY    RULES    OF    EVIDENCE. 

595.  The  general  maxims  of  law,  "  Dolus  et  fraus 
nemini  patrocinentur,"  (/")*  "Jus  et  fraus  nonquam  co- 
habitant/'Q')-"  Qui  fraudem  fit  frustra  agit,"  (//)  apply- 
to  the  decisions  of  tribunals,  (z)  Lord  Chief  Justice 
de  Grey,  in  delivering  the  answer  of  the  judges  to  the 
House  of  Lords  in  the  Duchess  of  Kingston's  case,  (/£) 
speaking  of  a  certain  sentence  of  a  spiritual  court,  says  : 
"If  it  was  a  direct  and  decisive  sentence  upon  the 
point,  and,  as  it  stands,  to  be  admitted  as  conclusive 
evidence  upon  the  court,  and  not  to  be  impeached  from 
within;  yet,  like  all  other  acts  of  the  highest  judicial 
authority,  it  is  impeachable  from  without.  Although 
it  is  not  permitted  to  show  that  the  court  was  mis- 
taken, it  may  be  shown  that  they  were  misled.  Fraud 
is  an  extrinsic  collateral  act,  which  vitiates  the  most 
solemn  proceedings  of  courts  of  justice."  In  such 
cases,  as  has  been  well  expressed,  the  whole  proceed- 
ing was"  fabula,non  judicium."  (/)  And  this  principle 
applies  to  every  species  of  judgment;  to  judgments  of 
courts  of  exclusive  jurisdiction  ;  (;;z)  to  judgments  in 
rem;  (72)  to  judgments  of  foreign  tribunals,  (0)  and 
even  to  judgments  of  the  House  of  Lords.  (/) 

(g)  10  Co.  45a.  Macqueen,  Law  of  Marriage,  Divorce 

(A)  2  Roll.  17.  and  Legitimacy,  2nd  Ed.,  p.  68. 

(i)  3    Co.    78a  ;    The    Duchess    of  (w)  Meddomcraft    v.     Hugenin,     5 

Kingston's    case,     11     St.     Tr.     262  ;  Curt.  403. 

Brownsword  v.  Edwards.  2  Vez.  2_|6  ;  (//)  In  re  Flace,  8   Exch.   704,  per 

Earl  of  Bandon   v.  Becher,  3   CI.  &  F.  Parke,  B. 

479  ,  Harrison  v.The  Mayor  of  South-  (<?)  Bank  of  Australasia  v.   Nias,    16 

ampton,  4  De  G.,  M.  &  G.  14S.  B.  717. 

(i)  11  St.  Tr.  262.  (/)Shedden   v.    Patrick,    I    Macq. 

(/)  4   De    G.,    M.    &  G.    148.     See  Ho.  Lo.  Cas.  535. 

cago,  5  Wall.  566;  Beere  v.  Fleming:,  13  Ir.  (C.  L.)5o6;  Nor- 
ton v.  Huxley,  13  Gray,  285  ;  Wood  v.  Jackson,  8  Wend.  10 
Lawrence  v.  Hunt,  10  Wend.  80. 

1  Or,  in  another  form,  Fraus  et  dolus  nemini  patrovinari; 
debent  (3  Co.  78) — no  one  should  encourage  fraud  and  deceit 

3  Justice  and  fraud  never  agree  together. 


RES    JUDICATA.  1007 

It  is  perhaps  needless  to  add,  that  a  supposed 
judicial  record  offered  in  evidence  may  be  shown  to 
be  a  forgery,  (q) 

(?)  Noell  v.  Wells,  1  Sid.  358. 


iooS     SECONDARY    RULES     OF    EVIDENCE. 


CHAPTER  X. 

QUANTITY    OF    EVIDENCE    REQUIRED. 

PARAGE \TH 

General  rule — No   particular    number   of  instruments  of   evidence   re- 
quired for  proof  or  disproof    ........  596 

Almost  peculiar  to  the  common  law  of  England     ....  597 

Arguments  in  favor  of  requiring  a  plurality  of  witnesses     .         .         .  597 

Arguments  against  it        ........         .  597 

Origin  of  the  rule         ..........  599 

Exceptions  justifiable  in  certain  cases 600 

Exceptions  to  the  general  rule    .         .         . 602 

lQ.  At  common  law         .........  603 

1.  Prosecutions  for  perjury 603 

Reason    usually  assigned  for  this  exception         .         .  605 

True  reason 606 

Amount  of  evidence  required  from  each  witness,  or  proof  608 

2.  Proof  of  wills 611 

Trial  by  witnesses         ...  .....  612 

4.  Claims  of  villenage  or  niefty 614 

8*.  Created  by  statute 615 

1.  Trials  for  treason  and  misprision  of  treason     .         .         .         615 

Reasons  for  this  alteration  of  the  common  law         .         .  6i3 

Objections  to  it 619 

Killacy  of  . 619 

Two  witnesses  not  requisite  to  prove  collateral  matters  620 

2.  Other  statutory  exceptions    .......  621 

vVhen  two  witnesses  are  required,  their  credit  is  to  be  determined  by  the 

jury 622 

596.  The  last  subject  that  offers  itself  to  our 
attention  in  this  part  of  the  work,  is  the  quantity  of 
legitimate  evidence  required  for  judicial  decision.  This 
is  governed  by  a  rule  of  a  negative  kind,  which,  in 
times  past  at  least,  was  almost  peculiar  to  the  common 
law  of  England,  (a)  namely,  that  in  general  no  particu- 

(a)  The  Hindu  law  seems  the  re-  the  exception,  not  the  rule.  See 
verse  of  outs  : — vvhe're  the  testimony  Translation  of  Pootee,  c.  3,  sect.  8,  in 
of  a  single   witness   is  sufficient    it    is      Halhed's  Code  of  Gentoo  Laws. 


QUANTITY  OF  EVIDENCE  REQUIRED.     1009 

lar  number  of  instruments  of  evidence  is  necessary  for 
proof  or  disproof, — the  testimony  of  a  single  witness, 
relevant  for  proof  of  the  issue  in  the  judgment  of  the 
judge,  and  credible  in  that  of  the  jury,  is  a  sufficient 
basis  for  decision,  both  in  civil  and  criminal  cases.  (J>) 
And,  as  a  corrollarv  from  this,  when  there  is  conflict- 
ing  evidence,  the  jury  must  determine  the  degree  of 
credit  to  be  given  to  each  of  the  witnesses  ;  for  the 
testimony  of  one  witness  may  in  many  cases,  be  more 
trustworthy  than  the  opposing  testimony  of  many.  (V) 
The  rule  has  been  expressed  "ponderantur  testes,  non 
numerantur  ;  "(d)  but  "  testimonia  "  or  "probationes" 
would  be  better  than  "testes  "  as  it  is  clearly  not  con- 
fined to  verbal  evidence,  (e)  l 

597.  We  have  said  that  this  rule  is  a  distinguishing 
feature  in  our  common-law  system.  The  Mosaic  law  in 
some  cases,  (/")  and  the  civilians  and  canonists  in  all,  (g) 

(i>)  See  Blackst.  Com.   370  ;  Stark.  honore  prsefulgeat :"  Cod.  lib.  4,   tit. 

Evid.  827,  4th    Ed.  ;  Trials   per   Pais,  20,  1.  9,  §  I.     See   also  Id.  1.  4  ;   IIu- 

363  ;  Peak's  F.v.  9,  5th  Ed.;  Co.  Litt.  berus,  Prnel.   Jur.  Civ.  lib.   22,   tit.    5, 

6  b  ;  Fost.  C  L.  233  ;  2   Hawk.  P.  C  n.    18  ;  Decretal,   Gregor.    IX.   lib.  2, 

c.  25,  s.  131,  and  c.  46,  s.  2.  tit.  20,  c.    23  ;  and  supra,   Introd.   pt. 

(c)  Stark.  Evid.  832,  4th  Ed.  2,  §§  66  et  seq.    Bonnier,  in  his  Traite 

(d)  Id.  des   Preuves,  §  201,  labors    hard,    anc 
(<?)  "  Testimonia   ponderanda   sunt,      apparently  with  success,  to  show  that 

non    numeranda,"    is    found    in     the  the  lawyers  of  ancient  Rome  did  not 

Scotch    law  authorities.     Halk.   Max.  establish  this  rule,  which  he  considers 

174  ;  Ersk.  Inst.  bk.  4,  tit.  2,  §  26.  the  production  of  the   lower  empire. 

(/)  See  the  next  note.  He  argues  that  all   the  expressions  to 

{g)  Their    maxim    is    well    known,  be  found  in   the  Corpus  Juris   Civilis 

"  Unius  omnind   testis  responsio  non  of  an  anterior  date,  which  seem  to  re- 

audiatur,     etiamsi      prseclarae      curiae  quire  a  plurality  of  witnesses,  must  be 

1  Witnesses  are  weighed,  not  counted  :  that  is,  they  are  to 
be  estimated  by  the  weight  or  importance  of  their  testimony, 
rather  than  by  their  number.  The  author  suggests  that  cither 
of  the  words  "  testimonia  "  or  "  probationes  "  might  be  substi- 
tuted in  the  maxim  for  u  testes,"  as  causing  it  to  imply  :  that 
the  importance  of  the  testimony  or  proofs  offered  should  be 
weighed,  rather  than  that  its  value  should  be  estimated 
merely  by  the  number  of  witnesses  sworn. 
64 


ioio    SECONDARY    RULES    OF    EVIDENCE. 

exacted  the  evidence  of  more  than  one  witness, — a 
doctrine  adopted  by  most  nations  of  Europe,  and  by 
the  ecclesiastical  and  some  other  tribunals  among  us. 
As  might  naturally  be  expected,  much  has  been  said 
and  written,  and  the  most  opposite  views  have  pre- 
vailed, on  the  merits  of  the  different  systems.  Those 
who  take  the  civil-law  view  contend, that  it  is  dangerous 
to  allow  a  tribunal  to  act  on  the  testimony  of  a  single 
witness — since  by  this  means  any  person,  even  the 
most  vile,  can  swear  away  the  liberty,  honor,  or  life  of 
anyone  else;  they  insist  on  the  undoubted  truth,  that 
the  chance  of  discrepancy  between  the  statements  of 
two  false  witnesses,  when  examined  apart,  is  a  powerful 
protection  to  the  party  attacked  ;  and  some  of  them  en- 
deavor to  place  the  matter  on  a  jure  divino  foundation, 
by  contending  that  the  rule  requiring  two  witnesses  is 
laid  down  in  Scripture.  (//)     Now  we  are  by  no  means 


understood  in  the  sense  of  cautions  to 
the  judge,  and  not  as  positive  rules  of 
law.  The  following  pa--sage  is  cer- 
tainly very  shrewd  and  forcible  :  "  Ce 
n'est  que  sous  Constantin  que  nous 
voyons  l'exclusion,"  ()f  the  testimony 
of  a  single  witness,)  "  nettement  for- 
mulae ;  et  encore  l'empereur  n'en  vint 
il  la  qu'a  la  suite  d'une  premiere  con- 
stitution, qui  recommandait  seulement 
aux  juges  d'etre  circonspects  :  Simili 
modo  sanximus,  1.  9,  g  1,  Cod.  de 
testib.  (Cod.  lib.  4,  tit.  20,  1  9,  §  1, 
already  cited  in  this  note),  ut  unius 
testimonium,  nemo  judicum  in  qua- 
cunque  causa  facile  patiatur  admitti. 
Et  nunc  manifeste  sancimus,  ut  unius 
omnino  testis  responsio  non  audiatur, 
etiamsi  pra?clarae  curiae  honore  pra.'ful- 
geat.  C'est  done  au  Bas  Empire 
qu'appartient  Tintroduction  de  la 
maxime,  testis  until  testis  nullus." 
The  French  author  is  not  peculiar  in 
this    view  ;     the    same    notion    as     to 


the  origin  of  the  rule  requiring  two 
witnesses,  having  been  advanced  long 
before  his  time,  See  Huberus,  Prcel. 
Jur.  Civ.  lib.  22,  tit.  3,  n.  2  ;  and 
supra,  Introd.  pt.  2,  §  66. 

(A)  The  civilians  and  canonists, 
Mascard.  de  Prob.  Quaest.  5,  n.  10  ; 
Decretal,  Gregor.  IX.  lib.  2,  tit.  20, 
cap.  23,  &c.  ;  and,  there  is  reason  to 
believe,  our  old  lawyers,  Fortesc.  cc. 
31,  32;  3  Inst.  26;  Plowd.  8;  argu- 
ment in  R.  v.  Yaughan,  13  Ho.  St.  Tr. 
535  ;  and  their  contemporaries ;  see 
Waterhouse,  Comm.  on  Fortesc.  pp. 
402-403,  and  Sir  Walter  Raleigh's 
case,  2  Ho.  St.  Tr.  15  ;  fancied  that 
they  saw  in  Scripture  a  divine  com- 
mand, to  require  the  testimony  of 
more  than  one  witness  in  all  judicial 
proceedings.  On  this,  Serjeant  Haw- 
kins, 2  P.  C.  c.  25,  s.  131,  very  judi- 
ciously observes,  that  the  passages  in 
the  Old  Te>tameni  which  speak  of 
requiring     two    witnesses,     "  concern 


QUANTITY  OF  EVIDENCE  REQUIRED,     ion 

prepared  to  deny,  that  under  a  system  where  the  de- 
cision of  all  questions  of  law  and  fact  is  entrusted  to  a 
single  judge,  or  in  a  country  where  the  standard  of  truth 


only  the  judicial  part  of  the  Jewish  law 
which,  being  framed  for  the  particular 
government  of  the  Jewish  nation,  doth 
not  bind  us  any  more  than  the  cere- 
monial ;  and  that  those  in  the  New 
Testament  contain  only  prudential 
relief  for  the  direction  of  the  govern- 
ment of  the  Church,  in  matters  intro- 
duced by  the  Gospel,  and  no  way  con- 
trol the  civil  constitution  of  countries." 
See  also  i  Greenl.  Evid.  §  260a,  note 
(3)1  7th  Ed.  Not  only  is  the  notion  of  a 
jus  divinum  on  such  matters,  untena- 
ble and  absurd  under  a  religion  whose 
Founder  declared  that  his  kingdom  is 
not  of  this  world,  John  xviii.  36,  and 
disclaimed  all  authority  as  a  judge  or 
divider  over  men,  Luke  xii.  14;  but 
it  may  be  questioned  whether  the  pas- 
sages cited  in  support  of  the  dogma, 
really  bear  it  out,  when  considered  in 
themselves  apart  from  traditions  and 
glosses.  The  text  of  the  Mosaic  code 
on  this  subject  will  be  found  in  Numb. 
xxxv.  30  ;  Deut.  xvii.  b,  and  Deut. 
xix.  15  ;  the  first  two  of  which  prohi- 
bit capital  punishment  unless  on  the 
testimony  of  at  least  two  witnesses, 
and  the  last  directs  that  "  one  witness 
shall  not  rise  up  against  a  man  for  any 
iniquity,  or  for  any  sin,  that  he  sinneth: 
at  the  mouth  of  two  witnesses,  or  at 
the  mouth  of  three  witnesses,  shall  the 
matter  be  established."  In  the  case 
also  of  preappointed  evidence  by 
deeds,  agreements,  &c,  it  seems  to 
have  been  customary  among  the  Jews, 
as  among  ourselves,  to  secure  the  tes- 
timony of  more  than  one  witness  (see 
Isaiah,  viii.  2  ;  Jer.  xxxii.  10-13).  But 
nothing  in  the  Old  Testament,  that 
we  are  aware  of,  gives  the  remotest 
intimation  that  two  witnesses  were  re- 
quired  in  civil   cases   in  general  ;  and 


there  are  some  passages  which  seem 
indirectly  to  show  the  reverse.  Thus 
when  Moses  speaks  of  civil  trespasses 
in  Exod.  xxii.  9,  he  says  nothing  about 
any  number  of  witnesses  :  "  For  all 
manner  of  trespass,  whether  it  be  for 
ox,  for  ass,  for  sheep,  for  raiment,  or 
for  any  manner  of  lost  thing,  which 
another  challengeth  to  be  his,  the 
cause  of  both  parties  shall  come  be- 
fore the  judges  ;  and  whom  the  judges 
shall  condemn,  he  shall  pay  double 
unto  his  neighbor."  The  Jews,  like 
the  rest  of  mankind,  had  their  docu 
mentary  evidence,  their  real  evidence, 
and  their  presumptive  evidence.  In 
Deut.  xxiv.  r,  it  is  provided  that  a  man 
may  put  away  his  wife  by  giving  her 
a  written  bill  of  divorcement,  but  no 
mention  is  made  of  witnesses  to  that 
instrument.  So  of  real  evidence  in 
Exod.  xxii.  10-13,  it  is  expressly  pro- 
vided, "  if  a  man  deliver  unto  his 
neighbor  an  ass,  or  an  ox,  or  a  sheep, 
or  any  beast,  to  keep,  &c.  And  if  it 
be  stolen  from  him,  he  shall  make  res- 
titution unto  the  owner  thereof.  If  it 
be  torn  in  pieces,  then  let  him  bring 
it  for  witness,  and  he  shall  not  make 
good  that  which  was  torn."  We  also 
read  in  another  place,  "  Now  this  was 
the  manner  in  former  time  in  Israel 
concerning  redeeming  and  concerning 
changing,  for  to  confirm  all  things  :  A 
man  plucked  off  his  shoe,  and  gave  it 
to  his  neighbor:  and  this  was  a  testi- 
mony in  Israel."  Ruth,  iv.  7.  And. 
lastly,  with  respect  to  presumptive  evi- 
dence, there  is  one  celebrated  case  in 
Jewish  histoiy  which  appears  to  have 
been  decided  without  any  witness  at 
all.  We  allude  to  the  judgment  of 
Solomon,  1  Kings,  iii.  16,  et  stq.  Two 
women  with  child  were  delivered  in   a 


ioi2    SECONDARY    RULES     VF    EVIDENCE. 


among  the  population  is  very  low,  such  a  rule  may  be 
a  valuable  security  against  the  abuse  of  power  and  the 
risk  of  perjury :  but  it  is   far  otherwise  where  a  high 


house,  in  which  the  narrative  expressly 
states  there  was  no  one  but  themselves 
at  the  time.  One  of  the  children  died; 
nd  both  women  claimed  the  living 
child,  one  accusing  the  other  of  having 
taken  it  from  her  as  she  slept,  and  put 
the  dead  child  in  its  place.  Solomon, 
as  is  well  known,  ascertained  the 
truth  by  ordering  the  living  child  to  be 
divided  into  two  parts,  and  a  part  de- 
livered to  each  of  the  women,  to  which 
the  pretended  mother  assented  ;  but 
the  real  mother,  actuated  by  her  ma- 
ternal feelings,  prayed  that,  sooner 
than  the  child  should  be  slain,  he 
might  be  given  to  her  adversary. 

We  may  here  observe,  that  if  the 
civilians  and  canonists  considered  the 
laws  of  Moses  obligatory  on  them  in 
matters  of  procedure,  there  was  a  por- 
tion of  it  which  they  might  have 
copied  with  advantage.  By  that  law, 
every  Jew,  at  least  when  his  life  or 
person  was  in  jeopardy,  was  tried  in 
the  face  of  his  countrymen  at  the  gate 
of  his  city,  and  most  usually  by  several 
of  its  elders.  See  Deut.  xxi.  19,  &c.  ; 
xxii.  15  ;  xxv.  7  ;  Ruth,  iv.  1-11  ;  Josh. 
xx.  4  ;  Jer.  xxvi.  10,  (kc.  ;  Amos.  v.  10 
-15,  &c.  The  civilians  and  canonists 
entrusted  the  decision  of  every  cause, 
to  the  judgment  of  a  single  judge,  sit- 
ting in  secret,  acting  on  evidence 
taken  in  secret,  and  reduced  to  writ- 
ing by  a  subordinate  officer,  with 
scarcely  a  check  against  misdecision, 
beyond  a  tedious  and  expensive  appeal 
to  a  superior  tribunal,  similarly  con- 
stituted. 

The  p  issages  in  the  New  Testament 
which  were  cited,  or  more  properly 
speaking  tortured,  to  bear  out  the 
dogma  requiring  a  plurality  of  wit- 
l.     es,  mall  cases,  are  Matt,  xviii    15, 


16;  John  viii.  17  ;  2  Cor.  xiii.  1  ;  1 
Tim.  v.  19  ;  Ileb.  x.  2S  ;  but  princi- 
pally the  first,  respecting  which  the 
text  of  the  Decretal  runs  thus  :  "  Quia 
non  est  licitum  alicui  Christiano,  et 
multo  minus  crucis  Christi  inimico,  ut 
causae  suae  uniur  tantum  quasi  legitimo 
testimonio  finem  imponat  :  Manda- 
mus, quatenus  si  inter  vos  et  qnoscun- 
que  Judseos  emerserit  quaestio,  in  qual- 
ibet  causa  Christiani,  et  maxime  clerici, 
non  minus  quam  duorum  vel  trium 
virorum,  qui  sint  probatae  vitas  et  fidelis 
conversetionis,  testimonium  admitta- 
tis,  juxta  illud  Dominicum.  In  ore 
duorum  vel  trium  testium  stat  omne 
verbum.  Quia  licet  quaedam  sint 
causae,  quae  plures,  quam  duos  exigant 
testes,  nulla  est  tamen  causa,  quae 
unius  testimonio  (quamvis  legitimo) 
terminetur."  Decretal.  Gregor.  IX. 
lib.  2,  tit.  20,  c.  23.  See  also  c.  4. 
The  passage  on  which  so  much  stress 
is  here  laid  is  thus  given  in  the  Church 
of  England  version  of  the  New  Testa- 
ment, which  agrees  in  substance  with 
the  Vulgate,  "  If  thy  brother  shall 
trespass  against  thee,  go  and  tell  him 
his  fault  between  thee  and  him  alone  : 
if  he  shall  hear  thee,  thou  hast  gained 
thy  brother.  But  if  he  will  not  hear 
thee,  then  take  with  thee  one  or  two 
more,  that  in  the  mouth  of  two  or 
three  witnesses  every  word  may  be  es- 
t.iMished."  Matt,  xviii.  15,  16.  Now, 
les  the  answer  already  from  Serjt. 
Hawkins,  it  might  be  sufficient  to  ob- 
serve on  th?s  passage,  that  the  case 
put  in  it  is  clearly  a  case  of  preap- 
pointedevidence,  the  marked  difference 
between  which  and  casual  evidence 
has  been  pointed  out,  supta,  Introd. 
pt.  I>  §  31,  and  pt.  2,  §  60  ;  so  that, 
even  supposing  the  command  to  affect 


QUANTITY  OF  EVIDENCE  REQUIRED.     1013 

standard  of  truth  prevails,  and  facts  are  tried  by  a  jury 
directed  and  assisted  by  a  judge.  Add  to  this,  that 
the  anomaly  of  acting  on  the  testimony  of  one  person 
is  more  apparent  than  real ;  for  the  decision  does  not 
proceed  solely  on  the  story  told  by  the  witness,  but  on 
the  moral  conviction  of  its  truth,  based  on  its  intrinsic 
probability  and  his  manner  of  giving  his  evidence. 
And  there  are  few  cases  in  which  the  decision  rests 


municipal  law  at  ill,  the  applying  it 
to  every  case,  civil  or  criminal,  is  an 
unwarrantable  extension  of  the  text. 
But  there  is  another  answer,  more 
complete  and  satisfactory,  because  ap- 
plicable to  most  of  the  other  passages 
as  well  as  to  this.  Assuming  that  the 
passage,  "in  the  mouth  of  two  or 
three  witnesses  every  word  may  be  es- 
tablished." is  to  be  understood  as  re- 
cognizing the  binding  authority  of  the 
Mosnic  law  with  respect  to  witnesses  ; 
the  principle  of  that  law,  as  already 
shown,  was  to  require  more  than  a  sin- 
gle witness,  in  those  cases  only  where 
condemnation  would  be  followed 
by  very  serious  punishment  ;  and  it 
appears  from  the  following  verse  of  the 
chapter  under  consideration,  that  dis- 
obedience to  the  remonstrance  there 
directed  to  be  made,  would  be  the 
foundation  of  further  proceedings, 
ending  in  the  total  excommunication 
of  the  offending  party.  The  next 
three  passages  may  be  explained  in  a 
similar  way  ;  as  they  all  relate  to  mat- 
ters where  the  gravest  consequences 
would  follow  disobedience,  after  cer- 
tain acts  had  been  evidenced  in  the 
manner  therein  stated.  In  John  viii. 
17,  iS,  our  Lord  shows  the  Jews  that 
there  are  two  witnesses  to  the  divinity 
of  hi-  mission;  in  the  2  Cor.  xiii.  1, 
the  Apostle  Paul,  in  order  to  justify 
himself  in  taking  severe  measures 
against    some  of  the    Corinthians   for 


disobedience  of  his  injunctions  (see 
ver.  2  and  10),  tells  them  that  he  was 
in  a  condition  to  prove  every  word  of 
them  by  two  or  three  witnesses  ;  and 
in  the  third  (1  Tim.  v.  19)  the  same 
apostle  lays  down  as  a  rule  of  ecclesi- 
astical peace,  that  an  accusation  should 
not  be  received  against  an  elder  but 
before  two  or  three  witnesses.  The 
remaining  passage  (Heb.  x.  2S)  is  lit- 
tle more  than  a  historical  allusion  to 
the  Mosaic  law  on  this  subject  ;  and, 
so  far  as  it  goes,  rather  confirms  the 
views  put  forward  in  this  note,  viz., 
"  He  that  despised  Moses'  law  died 
without  mercy  under  two  or  three  wit- 
nesses." 

Before  dismissing  this  subject,  we 
would  direct  the  attention  of  our  read- 
ers to  the  word  "  virorum,"  in  the 
above  Decretal  ;  which  was  evidently 
inserted  to  exclude  the  testimony  of 
en,  whose  evidence  was  so  much 
suspected  by  the  civilians  :  vide  supra, 
Introd.  pt.  2,  §  64.  It  is  perhaps  need- 
less to  add,  that  none  of  the  passages 
of  Scripture  which  have  been  referred 
to  make  any  such  distinction.  Indeed 
in  John    viii.  17,  already  1  ■  ex- 

pression  is  avdpoKov  not  ocvSpoov, 
The  motion  may  hove  had  its  origin  ia 
an  apparently  spurious  law  attributed 
to  Moses  by  Josephus  :  Antiq.  Judiac. 
lib.  4,  c.  8,  n.  15  ;  for  which  <« 
Introd.  part  2,  §  64. 


1014     SECONDARY    RULES     OF    EVIDENCE. 

even  on  these  circumstances  alone ;  they  are  usually 
corroborated  by  the  presumption  arising  from  the 
absence  of  counterproof  or  explanation,  and  in  criminal 
cases  by  the  demeanor  of  the  accused  while  on  his 
trial ;  for  the  observation  of  Beccaria  must  not  be  for- 
gotten, "  imperfect  proofs,  from  which  the  accused 
might  clear  himself,  and  does  not,  become  perfect."  (z) 
Still,  however,  on  the  trial  of  certain  accusations,  which 
are  peculiarly  liable  to  be  made  the  instruments  of 
persecution,  oppression,  or  fraud  ;  and  in  certain  cases 
of  preappointed  evidence  (where  parties  about  to  do 
a  deliberate  act,  may  fairly  be  required  to  provide 
themselves  witn  any  reasonable  number  of  witnesses, 
in  order  to  give  facility  to  proof  of  that  act)  ;  the  law 
may  with  advantage  relax  its  general  rule,  and  exact  a 
higher  degree  of  assurance  than  could  be  derived  from 
the  testimony  of  a  single  witness.  (/) 

598.  On  the  other  hand,  however,  as  the  requiring 
a  plurality  of  witnesses,  clearly  imposes  an  obstacle  to 
the  administration  of  justice,  especially  where  the  act  to 
be  proved  is  of  a  casual  nature;  above  all  where, 
being  in  violation  of  law,  as  much  clandestinity  as  pos- 
sible would  be  observed,  it  ought  not  to  be  required 
without  strong  and  just  reason.  Its  evils  are  these  : 
1.  It  offers  a  premium  to  crime  and  dishonesty:  by 
telling  the  murderer  and  felon  that  they  may  exercise 
their  trade,  and  the  knave  that  he  may  practice  his 
fraud,  with  impunity,  in  the  presence  of  any  one  per- 
son ;  and  the  unprincipled  man  that  he  may  safely 
violate  any  engagement,  however  solemn,  contracted 
under  similar  circumstances.  2.  Artificial  rules  of  this 
kind  hold  out  a  temptation  to  the  subornation  of  per- 
jury, in  order  to  obtain  the  means  of  complying  with 

(i)  Beccaria,     Dei     Delitti    et    delle      J.,  in  R.  v.  Burdett,  4  B.  &  A.  161-2. 
Pene.  s.   7.     See  also,  p-r  Abbott,  C.  (j )  See  infra. 


Q UANTITY  OF  E VIDENCE  REQUIRED,     i o 1 5 

them.  3.  They  produce  a  mischievous  effect  on  the 
tribunal,  by  their  natural  tendency  to  re-act  on  the 
human  mind  ;  and  they  thus  create  a  system  of 
mechanical  decision,  dependent  on  the  number  of 
proofs,  and  regardless  of  their  weight.  (/£) 

599.  But  whether  the  common-law  rule  had  its 
origin  in  these  considerations  is  doubtful.  Our  old 
lawyers  do  not  seem  to  have  been  emancipated  from  the 
civil  and  canon  law  notion,  that  two  witnesses  ought  to 
be  required  in  all  cases,  based  as  this  notion  was  then 
supposed  to  be,  on  the  authority  of  Scripture,  and  forti- 
fied by  the  practice  of  the  church.  (/)  But  as  in  those 
times  the  jury  were  themselves  a  species  of  witnesses, 
and  might,  if  they  chose  to  run  the  risk  of  an  attaint, 
find  a  verdict  without  any  evidence  being  produced 
before  them,  (111)  our  ancestors  considered  that  a  judg- 
ment founded  on  the  verdict  of  twelve  men  was  a  virtual 
compliance  with,  what  they  deemed, a  divine  command. 
One  strong  proof  of  this  is,  that  where  the  trial  was 
without  a  jury,  namely,  on  a  trial  by  witnesses,  the  rule 
of  the  civil  and  canon  law  was  thought  binding  and 
two  witnesses  were  exacted.  («) 

600.  Some  modern  jurists,  not  satisfied  with  con- 
demning the  civil  law  for  requiring  at  least  two  wit- 
nesses in  all  cases,  attack  ours  for  not  going  far  enough 
in  the  opposite  direction,  and  would  abolish  the  excep- 
tions to  the  rule  which  declares  the  testimony  of  one  to 
be  sufficient.  At  the  head  of  these  stands  Bentham,  (0) 
whose  arguments  have  been  considered  in  the  Intro- 
tion;  (ft)  but  who,  after  all,  admits,  what  indeed  it 
would  be  difficult  to  deny,  that  requiring  the  second 

(£)  Introd.  pt.  3,  §  69.  (<?)  4    Benth.  Jud.   Ev     503  ;  5    Id 

(/)  Supra,  §  597,  note  {Ji).  463  et  seq. 

(m)  Bk.  1,  pt.  2,  §  119.  (/)Pt- 2,  §53- 

in)  Infra. 


ioi6     SECONDARY    RULES    OF    EVIDENCE. 

witnsss  is,  to  a  certain   extent  at  least,  a  protection 
against  perjury,  (g) 

6oi.  On  the  whole,  we  trust  our  readers  will  agree 
with  us  in  thinking,  that  any  attempt  to  lay  clown  a 
universal  rule  on  this  subject,  which  shall  be  applicable 
to  all  countries,  ages,  and  causes,  is  ridiculous:  and 
that,  although  so  far  as  this  country  is  concerned,  the 
general  rule  of  the  common  law, — that  judicial  decisions 
should  proceed  on  the  intelligence  and  credit,  and  not 
on  the  number  of  witnesses  examined  or  documents 
produced  in  evidence, — is  a  just  one ;  (r)  there  are 
cases  where,  from  motives  of  public  policy,  it  has  been 
wisely  ordained  otherwise. 

602.  Of  the  exceptions  to  the  general  rule  respect- 
ing the  sufficiency  of  one  witness,  some  exist  by  the 
common  law,  but  by  far  the  greater  number  have  been 
introduced  by  statute. 

603.  i°.  Exceptions  at  common  law.  1.  The  most 
remarkable  and  important  of  these  is  in  the  case  of 
prosecutions  for  perjury,  (s)  We  speak  of  this  as  an 
exception  established  by  common  law,  because  it  is 
generally  so  considered,  and  certainly  does  not  appear 
to  have  been  introduced  by  statute.  But  whether  our 
law  has  always  required  the  testimony  of  two  witnesses 
to  be  given  to  the  judge  and  jury  on  a  charge  of  perjury, 
may  be  questioned,  as  most  of  our  early  text  writers  are 
silent  on  the  subject.  (7)  Fortescue,  indeed,  (w)  says, 
"  Qui  testes  de  perjurio  convincere  satagit,  multo  illis 
plures  producere  necesse  habet," — a  passage  transcribed 

(q)  5  Benth.  Jud.  Ev.  468.  Poth.  2S0  ;  2  Stark.  Ev.  859,  3rd  Ed.  ; 

(r)  An  eminent  French  jurist  of  our  R-    v-    Muscot,    10    Mod.    192;    Fan- 
day  calls  it  "  verite  de  sens   commun,  shaw's  case,  Skinn.  327  ;  R.  v.  Brough- 
qu'il  faut  peser  les  temoignages  et  non  tun,  2  Str.  122:),  1330. 
les    compter."     Bonnjer,    Traite    des  U)  Sec  2    Hawk.    P.  C.   c.  46,  s.  2, 
Preuves,  §  198.  and  c.  25,  s.  13 r  et  seq.  ^c. 

(s)  4    Blackst.    Com.     358  ;    2     Ev.  <«)   Fortesc.  de  Laud.  c.  32. 


QUANTITY  OF  EVIDENCE  REQUIRED.     1017 

without  comment  by  Sir  Edward  Coke,  („r)  but  the 
context  of  which  renders  it  doubtful  whether,  when  the 
Chancellor  wrote  these  words,  he  meant  to  express  a 
legal  rule.  A  stronger  argument  maybe  derived  from 
the  well  known  practice  in  attaint,  that  a  jury  of  twelve 
men  could  only  be  attainted  of  false  verdict  by  a  jury 
of  twenty-four.  But,  on  the  other  hand,  we  must  recol 
led  that  in  early  times  the  jury  themselves  were  looked 
on  as  witnesses,  (;r)  who  might  convict  of  perjury,  or, 
indeed,  of  any  offense,  on  their  own  knowledge  without 
other  testimony.  R.  v.  Muscot  is  the  leading  case  on 
this  subject.  (V)  That  was  an  indictment  for  perjury; 
and  Parker,  C.  J.,  in  summing  up,  is  reported  to  have 
said  :  (a)  "  There  isthis  difference  between  a  prosecution 
for  perjury,  and  a  bare  contest  about  property,  that  in  the 
latter  case  the  matter  stands  indifferent;  and  therefore, 
a  credible  and  probable  witness  shall  turn  the  scale  in 
favor  of  either  party  ;  but  in  the  former,  presumption  is 
ever  to  be  made  in  favor  of  innocence  ;  and  the  oath  of 
the  party  will  have  a  regard  paid  to  it,  until  disproved. 
Therefore  to  convict  a  man  of  perjury,  a  probable,  a 
credible  witness  is  not  enough  ;  but  it  must  be  a  strong 
and  clear  evidence,  and  more  numerous  than  the  evi- 
dence given  for  the  defendant,  for  else  there  is  only 
oath  against  oath."  Now  the  book  called  "  The 
Modern  Reports"  is  not  of  very  high  authority  ;  but 
even  supposing  the  utmost  accuracy  in  the  above 
report,  there  is  nothing  in  Chief  Justice  Parker's 
charge  inconsistent  with  the  supposition,  that  his  obser- 
vations were  made  in  the  way  of  prudential  advice  and 
direction  to  the  jury,  and  not  with  the  view  of  layino 
down  an  imperative  rule  of  law  ;  and  this  supposition 
is  in  some  degree  confirmed  by  the   comparison  with 

(x)  3  Inst    163.  (2)   10  Mod.  192,  Mich    12  Ann 

(y)  Supra,  bk.  1,  pt.  2,  §  119.  (a;  Id.  194. 


io 1 8     SECONDARY    RULES     OF    EVIDENCE. 

which  he  sets  out,  between  the  proof  in  perjury  and 
that  in  civil  cases. 

604.  The  rule  requiring  two  witnesses  in  indict- 
ments for  perjury,  applies  only  to  the  proof  of  the 
falsity  of  the  matter  sworn  to  by  the  defendant : — all 
preliminary  or  collateral  matters ;  such  as  the  juris- 
diction and  sitting  of  the  court,  the  fact  of  the 
defendant  having  taken  the  oath,  together  with  the 
evidence  he  gave,  &c.,  may  be  proved  in  the  usual 
way.  (ft) 

605.  The  reason  usually  assigned  in  our  books  for 
requiring  two  witnesses  in  perjury, — viz.  that  the  evi- 
dence of  the  accused  having  been  given  on  oath, 
when  nothing  beyond  the  testimony  of  a  single  wit- 
ness is  produced  to  falsify  it,  there  is  nothing  but 
oath  against  oath,  (V) — is  by  no  means  satisfactory. 
All  oaths  are  not  of  equal  value;  for  the  credibility 
of  the  statement  of  a  witness,  depends  quite  as  much 
on  his  deportment  when  giving  it,  and  the  probability 
of  his  story,  as  on  the  fact  of  it  being  deposed  to  on 
oath ;  and,  as  is  justly  remarked  by  Sir  W.  D.  Evans, 
the  motives  for  falsehood  in  the  original  testimony  or 
deposition,  may  be  much  stronger  with  reference  to 
the  event  on  the  one  side,  than  the  motives  for  a  false 
accusation  of  perjury  on  the  other,  (d)  In  many 
cases,  even  of  the  most  serious  kind,  tribunals  are 
compelled  to  decide  on  the  relative  credit  of  witnesses, 
who  swear  in  direct  contradiction  to  each  other. 
Where,  for  instance,  a  murder  or  larceny  is  proved  by 
one  or  more  witnesses,  and  an  alibi,  or  other  defense 
wholly  irreconcilable  with   their  evidence,  and  incon- 

(b)  Tayl.  Ev.  §  880,  4th  Ed.  ;  2  Gr.  3    Gr.    Russ,   77-78,  4th    Ed. ;   R.   Y. 
Rus.  654.  Harris,  5  B.  &  A.  939,  note. 

(c)  4  Blackst.  Com.  358  ;  Peake's  Ev.  {d)  2  Ev.  Poth.  280. 
9,  5th  Ed.  ;  3  Stark.  Ev.  859,  3rd  Ed.  ; 


Q  UA NTITY  OF  E  VIDENCE  REQ  CURED.     10 19 

sistent  with  any  hypothesis  of  mistake,  is  proved  by  a 
like  number  produced  by  the  accused  ;  the  verdict 
of  the  jury  may,  virtually,  though  not  formally,  deter- 
mine that  one  set  of  witnesses  or  the  other  has  com- 
mitted perjury. 

606.  The  foundations  of  this  rule,  we  apprehend, 
lie  much  deeper.  The  legislator  dealing  with  the 
offense  of  perjury,  has  to  determine  the  relative 
weight  of  conflicting  duties.  Measured  merely  by  its 
religious  or  moral  enormity,  perjury,  always  a  grievous, 
would  in  many  cases  be  the  greatest  of  crimes,  and  as 
such  be  deserving  of  the  severest  punishment  which 
the  law  could  inflict.  But  when  we  consider  the  very 
peculiar  nature  of  this  offense,  and  that  every  person 
who  appears  as  a  witness  in  a  court  of  justice,  is  liable 
to  be  accused  of  it  by  those  against  whom  his  evi- 
dence tells, — who  are  frequently  the  basest  and  most 
unprincipled  of  mankind  ;  and  when  we  remember 
how  powerless  are  the  best  rules  of  municipal  law  with- 
out the  co-operation  of  society  to  enforce  them  ;  we 
shall  see  that  the  obligation  of  protecting  witnesses 
from  oppression,  or  annoyance,  by  charges  or  threats 
of  charges  of  having  borne  false  testimony,  is  far 
paramount  to  that  of  giving  even  perjury  its  deserts. 
To  repress  that  crime,  prevention  is  better  than 
cure  ;  and  the  law  of  England  relies,  for  this  pur 
pose,  on  the  means  provided  for  detecting,  and 
exposing  the  crime  at  the  moment  of  commission, — 
such  as  publicity,  cross-examination,  the  aid  of  a  jury, 
&c. ; — and  on  the  infliction  of  a  severe,  though  not  ex- 
cessive punishment,  wherever  the  commission  of  the 
crime  has   been  clearly  proved,  (e)     But   in  order  to 

(e)  We  have  not  overlooked  the  vex-  capitally  by  English  law;  on  which 
ata  quaestio,  whether  the  taking  away  subject  see  Fost.  Cr.  Law,  131,  132; 
life  by  false  testimony  is   punishable      19  Ho.  St.  Tr.  810  note  ;  4  Blackst 


io20      SECONDARY    RULES     OF    EVIDENCE. 

carry  out  the  great  objects  above  mentioned  our  law 
gives  witnesses  the  privilege  of  refusing  to  answer 
questions  which  tend  to  criminate,  or  to  expose  them 
to  penalty  or  forfeiture;  (_/)  it  allows  no  action  to  be 
brought  against  a  witness,  for  words  written  or  spoken 
in  the  course  of  his  evidence  ;  (  g)  and  it  throws  every 
fence  round  a  person  accused  of  perjury.  Besides 
great  precision  is  required  in  the  indictment ;  the 
strictest  proof  is  exacted  of  what  the  accused  swore ; 
and  lastly,  the  testimony  of  at  least  two  witnesses 
must  be  forthcoming  to  prove  its  falsity.  The  result 
according  is  that  in  England  little  difficulty,  compara- 
tively speaking,  is  found  in  obtaining  voluntary  evi- 
dence for  the  purposes  of  justice;  and  although  many 
persons  may  escape  the  punishment  awarded  by  law  to 
perjury,  instances  of  erroneous  convictions  for  it  are 
unknown,  and  the  threat  of  an  indictment  for  perjury 
is  treated  by  honest  and  upright  witnesses  as  a  brutum 
fulmen. 

607.  This  view  of  the  policy  of  our  law,  is  supported 

Comm.  13S  and  139  ;  and  196,  with  sible  to  measure  the  effect  of  his  testi- 
note  (4)  of  Professor  Christian.  Sup-  mony  on  the  mind  of  the  tribunal, 
posing  the  affirmative,  it  could  only  Indeed  in  most,  if  not  in  all  such  mi- 
ne by  an  indictment,  not  for  perjury,  happy  cases,  more  or  less  blame  rests 
but  for  murder,  with,  previous  to  the  with  the  tribunal,  in  rashly  giving 
14  &  15  Vict.  c.  100,  s.  4,  the  false  credit  to  the  false  evidence:  and  of 
oath  laid  as  the  means  of  death  ;  for  this  opinion  are  said  to  have  been  the 
it  is  clear  that  no  capital  indictment  old  Gothic  law  givers,  who  under  such 
could  be  I  rained  for  bearing  false  wit-  circumstances  punished  both  the  wit- 
ness with  intent  to  murder,  where  no  ness  and  the  judge,  and,  to  make  all 
conviction  of  the  innocent  parly  en-  sure,  the  prosecutor.  See  4  Blackst. 
sued.  And  as  in  all  cases  of  homicide,  Comm.  19b. 
the  death  of  the  deceased  must  be  (_/")  Bk.  2,  pt.  I,  ch.  1. 
clearly  and  unequivocally  traced  to  (g)  Dawkins  v.  Lord  Rokeby,  L. 
the  ar.t  of  the  accused,  no  such  indict-  Rep.,  S  Q.  B.  255  :  Henderson  v. 
ment  for  murder  could  be  sustained,  Broomhead,  4  H.  &  N.  569  ;  Revis  v. 
if  any  other  evidence,  certainly  if  any  Smith,  18  C  B.  126;  Collins  v.  Cave, 
other   material  evidence   besides   that  4  II.  X  N.  235  ;  affirm,  on  error,  6  Id. 

;e    accused,    were    given    on    the  131. 
former   trial  ;  tor  it   would  be   impos- 


QUANTITY  OF  EVIDENCE  REQUIRED.     1021 

by  the  history  of  legislation  on  the  subject  of  perjury 
The  law  of  the  Twelve  Tables  at  Rome,  recognizing  the 
impossibility  of  dealing  with  this  offense  according  to 
its  guilt  in  foro  cceli,laid  down,  "  Perjurii  poena  divina, 
exitium  ;  humana,  dedecus;  "  (Ji)  and  according  to  the 
Digest, "Qui  falso  vel  varie  testimonia  dixerunt,  vel 
utrique  parti  prodiderunt,ajudicibus  competenter  puni- 
untur."  (z')  The  legislators  of  the  middle  ages,  at  least 
in  this  country,  took,  as  might  be  expected,  the  higher 
and  more  violent  view  of  the  matter ;  the  punishment 
of  perjury  being  anciently  death,  afterwards  banishment, 
or  cutting  out  the  tongue,  then  forfeiture  of  goods.  (/£) 
But  experience  probably  showed  the  folly  and  danger 
of  such  penalties  for  this  offense,  as  its  punishment  was 
in  time  reduced  to  what  is  now  the  punishment  for  per- 
jury at  common  law,  viz.  fine  and  imprisonment ;  (/)  to 
which  was  added,  until  the  6  &  7  Vict.  c.  85,  the  dis- 
ability to  bear  testimony  in  any  legal  proceeding;  and, 
lest  this  should  be  thought  too  light,  Sir  Edward  Coke 
observes,  (;/z)  "Testis  falsus  non  erit  impunitus.  (n) 
Nocte  dieque  suum  gestat  sub  pectore  testem  :  (<?)  his 
conscience  always  gnawing  and  vexing  him."  The 
spirit  of  modern  legislation  is  in  accordance.  The 
5  Eliz.  c.  9,  inflicted  fine,  imprisonment,  and  the  pil- 
lory (the  latter  of  which  was  abolished  by  7  Will.  4  & 
1  Vict.  c.  23) ;  and  the  2  Geo.  2,  c.  25,  s.  2,  allowed  a 
limited  period  of  transportation  ;  for  which  penal  servi- 
tude for  a  term  of  years  has  been  substituted  by  more 
recent  enactments.  And  this  is  now  the  severest  pun- 
ishment that  can  be  inflicted  for  perjury.  The  power 
of  summarily  committing  false  witnesses  to  take  their 


{h)  4  Blackst.  Com.  139.  (/)  Id. 

(i)  Dig.  lib.  22,  tit.  5,  1.  16.  (m)  4  Inst.  279. 

(.£)  3    Inst.    163  ;    4    Blackst.  Com.  («)  Prov.  xix.  5. 

138-  (o)  Juvenal,  Sat.  13,  v.  iq8. 


1022     SECONDARY    RULES     OF    EVIDENCE. 

trial  for  perjury,  is  vested  in  tribunals  by  some  modern 
statutes,  especially  the  14  &  15  Vict.  c.  100,  s.  19 
although  a  similar  power  existed  by  the  common 
law.  (J>)  This  is  all  the  change  that  has  been  made 
for  several  centuries  in  the  punishment  of  perjury, 
although  death  was  so  frequently  inflicted,  both  by 
common  and  statute  law,  for  many  offenses  falling  in- 
finitely short  of  it  in  religious  and  moral  enormity. 

608.  It  is  not  easy  to  define  the  precise  amount 
of  evidence  required,  from  each  of  the  witnesses  or 
proofs  in  such  cases.  Indeed,  as  was  well  observed  by 
a  very  learned  judge,  (jf)  any  attempt  to  do  so  would 
be  illusory.  Mr.  Starkie.in  his  Treatise  on  Evidence,  (r) 
informs  us  that  he  heard  it  once  held  by  Lord  Tenter- 
den,  that  the  contradiction  of  the  evidence  given  by 
the  accused  must  be  given  by  two  direct  witnesses ; 
and  that  the  negative,  supported  by  one  direct  witness 
and  by  circumstantial  evidence,  would  not  be  sufficient ; 
and  allusion  to  a  ruling  of  that  sort  was  made  by  Cole- 
ridge, J.,  in  a  case  before  him.  (s)  But  this  decision, 
if  it  ever  took  place,  is  most  certainly  not  law.  It 
would  be  a  startling  thing  to  proclaim,  that  if  a  man 
can  eloign  all  direct,  he  may  defy  all  circumstantial 
evidence,  and  commit  perjury  with  impunity  ;  and  we 
accordingly  find  a  contrary  doctrine  laid  down  in  a 
variety  of  cases.  (7)  Again,  some  modern  authorities 
express  themselves  as  though  it  would  be  sufficient,  if 
one  witness  were  to  negative  directly  the  matter 
sworn  to  by  the  defendant ;  and  some  material  circum- 
stances were  proved  by  another  witness,  in  confirma- 

(/)  Hudson's  case,  Skinn.  79.  (/)  See  3  Gr.  Russ,  78.  et  seq.,  4th 

(q)  Per  Erie,  C.  J.,   R.  v.  Shaw,  10  Ed.,  and   the  case  cited   infra.     The 

Cox,  C.  C.  66,  72.  same  was  also  laid  down  by  Cresswell, 

(r)  3  Stark.  Ev.  860,  n.  (q),  3rd  Ed.  J.,  in   R.  v.   Young,  Kent   Sura.  Ass. 

(j)  Champney's  case,  2  Lew.  C.  C.  1073,  MS. 
258. 


QUANTITY  OF  EVIDENCE  REQUIRED.     1023 

Hon  or  corroboration  of  his  testimony.  («)  So  that, 
according  to  this  view,  it  would  only  be  necessary  to 
corroborate  the  testimony  of  the  direct  witness,  in  the 
same  manner  as  judges  are  in  the  habit  of  requiring 
the  testimony  of  an  accomplice  to  be  corroborated ; 
or  as  the  testimony  of  a  woman  must  be  corroborated, 
who  seeks  to  fix  a  man  with  the  maintenance  of  a 
bastard  child,  (v) 

609.  It  becomes,  therefore,  a  question  whether 
the  old  rule  and  reason  of  the  matter  are  satisfied, 
unless  the  evidence  of  each  witness  has  an  existence 
and  probative  force  of  its  own,  independent  of  that  of 
the  other ;  so  that,  supposing  the  charge  were  one  in 


(w)  I  Greenl.  Ev.  §  257,  7th  Ed.; 
Tayl.  Ev.  §  876,  ;th  Ed.  ;  R.  v.  Gardi- 
ner, 8  C.  &  P.  739  ;  R.  v.  Yates,  C.  & 
Mann.  159. 

(v)  The  difference  between  requiring 
he  evidence  of  tzuo  witnesses  in  sup- 
port of  a  particular  fact,  and  permit- 
ting it  to  be  proved  by  the  evidence  of 
one  witness  corroborated  by  that  of  an- 
other, has  been  repeatedly  recognized 
by  the  legislature,  e.g.,  in  the  7  &  8 
Vict.  c.  101,  s.  6,  and  the  8  &  9  Vict.  c. 
10,  s.  6,  where  it  is  enacted,  that  no 
order  in  bastardy  shall  be  made,  un- 
less the  evidence  of  the  mother  of 
the  child  "  shall  be  corroborated  in 
some  material  particular  by  other  tes- 
timony, to  the  satisfaction  of  the 
court  :  "  and  similar  words  are  used  in 
the  32  &  33  Vict.  c.  6S,  s.  2.  On  the 
other  hand,  there  are  cases  in  which, 
in  language  equally  explicit,  the  posi- 
tive testimony  of  two  witnesses  is  re- 
quired, in  order  to  fix  a  party  with  an 
offense.  Thus  the  1  Edw.  6,  c.  12, 
s.  22,  says,  that  the  prisoner  shall  "  be 
accused  by  two  sufficient  and  lawful 
witnesses  ; "  the  5  &  6  Edw.  6,  c.  II, 
(.  12,  says,  he  "shall  be  accused  by 
two  lawful  accusers  ;  "  the  7  &  8  Will, 


3,  c.  3,  s.  2,  says,  he  shall  be  condemned 
"upon  the  oaths  and  testimony  of 
two  lawful  witnesses  ;  "  and  the  it  & 
12  Vict.  c.  12,  s.  4,  that  he  shall  not  be 
condemned  unless  the  words  spoken 
"  shall  be  proved  by  two  credible  wit- 
nesses." And  the  following  ca-e  will 
show,  that  the  one  mode  of  proof,  is 
by  no  means  the  equivalent  of  the 
other.  Suppose  an  assignment  of  per- 
jury, that  on  the  trial  of  A.  for  stealing 
the  goods  of  B.,  the  defendant  falsely 
swore  that,  at  such  a  time,  he  saw  A., 
at  C,  take  and  cany  away  those  goods; 
and  in  order  to  prove  the  falsity  of 
this,  D.  and  E.  were  called  as  wi' 
nesses  ;  D.  to  show  that,  at  the  tim 
mentioned,  the  defendant  was  at  F. 
and  E.  to  show  that  A.  was,  at  that 
time,  at  G.  ;  this  evidence,  if  believed, 
would  be  sufficient  to  support  the 
charge  of  perjury  (see  per  Palteson, 
J.,  in  R.  v.  Roberts,  2  Car.  &  K.  614  5 
and  per  Byles,  J.,  in  R.  v.  Hook,  I 
Dearsl.  &  B.  606);  and  yet  it  is  ob- 
vious, that  one  of  the>e  alibis  might 
be  false  and  the  other  true, — so  that 
the  evidence  of  E.  dues  not  necessarily 
or  at  least  not  directly, corroborate  that 
of  O.,  or  vice  versa. 


1024      SECONDARY    RULES     OF    EVIDENCE. 

which  the  law  allows  condemnation  on  the  oath  of  a 
single  witness,  the  evidence  of  either  would  form  a  case 
proper  to  be  left  to  a  jury ;  or  would  at  least  raise  a 
strong  suspicion  of  the  guilt  of  the  defendant.  And 
by  analogy  to  this,  where  the  evidence  is — as  it  un- 
doubtedly may  be  by  law — wholly  circumstantial, 
whether  enough  must  not  be  proved  by  each  witness 
to  form  a  case  fit  to  be  left  to  the  jury,  if  the  artificial 
rule  requiring  two  witnesses  did  not  intervene ;  or 
whether  it  would  be  sufficient,  if  the  evidence  on  one 
witness  were  such  as  to  raise  a  violent  presumption  of 
guilt,  and  that  of  another,  to  raise  a  reasonable  suspi 
cion  of  it. — "  Prsesumptio  violenta  valet  in  lege."  (x) l 

6lO.  To  test  this  view  of  the  law  by  the  decisions 
and  language  of  judges.  In  R.  v.  Parker,  (y)  Tindal 
C.  J.,  says,  "  With  regard  to  the  crime  of  perjury,  the 
law  says,  that  where  a  person  is  charged  with  that 
offense,  it  is  not  enough  to  disprove  what  he  has  sworn, 
by  the  oath  of  one  other  witness  ;  and  unless  there  are 
two  oaths,  or  there  be  some  documentary  evidence,  or 
some  admission,  or  some  circumstances  to  supply  the 
place  of  a  second  witness,  it  is  not  enough."  In  Champ- 
ney's  case,  (z)  Coleridge,  J.,  said,  that  "  one  witness 
in  perjury  is  not  sufficient,  unless  supported  by  circum- 
stantial evidence  of  the  strongest  kind  ;  indeed  Lord 
Tenderton,  C.  J.,  was  of  opinion,  that  two  witnesses 
were  necessary  to  a  conviction;"  and  the  reporter  adds 
that  the  doctrine  of  Champney's  case  was  ruled  by  the 
same  judge  in  a  case  of  R.  v.  Wigley.  In  R.  v.  Yates,  (a) 
Coleridge,  J.,  also  said,  "  the  rule  that  the  testimony  of  a 
single  witness  is  not  sufficient  to  sustain  an  indictment 

(x)  Jenk.  Cent.  2,  c.  3  ;  see  Co.  Litt.  (z)  2  Lew.  C.  C  258. 

6  b     and  supra,  ch.  2,  §  317.  {a)  C  &  Marsh.  139. 

{y)  C.  &  Mar.-.h.  646. 

1  Strong  presumption  avails  in  law. 


QUANTITY  OF  EVIDENCE  REQUIRED.     I02f 

for  penury, isnot  a  mere  technical  rule,  but  a  rule  founded 
on  substantial  justice ;  and  evidence  confirmatory  of  that 
one  witness,  in  some  slight  particulars  only,  is  not  suffi- 
cient to  warrant  a  conviction."  In  R.  v.  Gardiner,  (b) 
the  defendant  was  indicted  for  perjury,  in  falsely  de- 
posing before  a  magistrate  that  the  prosecutor  had  had 
a  venereal  affair  with  a  donkey,  and  that  the  defendant 
saw  that  the  prosecutor  had  the  flap  of  his  trousers  un- 
buttoned and  hanging  down,  and  that  he  saw  the  inside 
of  the  flap.  To  disprove  this  the  prosecutor  and  his 
brother  were  examined.  The  former  negatived  the 
whole  statement  of  the  defendant ;  and  both  witnesses 
stated  that  they  went  to  the  field  mentioned  in  the  de- 
position ;  and  that  the  prosecutor  parted  from  the  brother 
to  see  whether  the  donkey,  which  was  full  in  foal,  was 
able  to  go  a  certain  distance  ;  that  he  was  absent  about 
three  minutes ;  and  that  the  trousers  he  had  on,  which 
were  produced,  had  no  flap.  On  this  Patteson,  J.,  said, 
"  I  think  that  the  corrobative  evidence  is  quite  suffi- 
cient to  go  to  the  jury."  Here  was  an  important  piece 
of  real  evidence  spoken  to  by  two  witnesses.  In  the 
case  of  R.  v.  Roberts,  (V)  also,  the  same  judge  said,  "If 
the  false  swearing  be,  that  two  persons  were  together 
at  a  certain  time ;  and  the  assignment  of  perjury  be, 
that  they  were  not  together  at  that  time  ;  evidence  by 
one  witness  that  at  the  time  named  the  one  was  at 
London,  and  by  another  witness  that  the  other  was 
at  York,  would  be  sufficient  proof  of  the  assignment  of 
perjury."  And,  lastly,  in  R.  v.  Mayhew,  (d) — where 
the  defendant,  an  attorney,  was  indicted  for  perjury  in 
an  affidavit  made  by  him  in  opposition  to  a  motion  to 
refer  his  bill  of  costs  for  taxation, — one  witness  was 
called  to  prove  the  perjury ;  and  in   lieu  of  a  second, 

(/*)  8  C.  &  P.  7.37.  (<*)  6  C.  &  P.  315. 

(c)  2  Car.  &  K.  614. 
65 


io26     SECONDARY    RULES    OF    EVIDENCE. 

it  was  proposed  to  put  in  the  defendant's  bill  of  costs 
which  he  had  delivered.  On  this  being  objected  to, 
Lord  Denman,  C.  J.,  said,  "  I  have  quite  made  up  my 
mind  that  the  bill  delivered  by  the  defendant  is  suffi- 
cient evidence ;  or  that  even  a  letter,  written  by  the 
defendant,  contradicting  his  statement  on  oath,  would 
be  sufficient  to  make  it  unnecessary  to  have  a  second 
witness."  Sir  W.  D.  Evans  tells  us  that  he  recollects 
having  seen  this  principle  acted  on  in  practice  in  his 
time  :  (e)  though  there  is  an  old  case  in  Siderfin  to 
the  contrary.  (/")  The  question  as  to  the  quantity  of 
evidence  required  on  a  prosecution  for  perjury,  was 
also  fully  discussed  before  the  Court  of  Criminal 
Appeal,  in  a  case  of  R.  v.  Boulter,  (jr)  But  that  case 
was  disposed  of  on  the  special  circumstances,  with- 
out the  court  laying  down  any  general  principle. 
And  probably  the  soundest  view  of  this  subject  is 
that  stated  by  Erie,  C.  J.,  in  R.  v.  Shaw,  (/i)  viz.,  that 
the  degree  of  corroborative  evidence  requisite  in  such 
cases,  must  be  a  matter  for  the  opinion  of  the  tribu- 
nal which  tries  the  case,  which  must  see  that  it  de- 
serves the  name  of  corroborative  evidence. 

Where  the  alleged  perjury  consists  in  the  defen- 
dant having  sworn  contrary  to  what  he  had  previously 
sworn  on  the  same  subject,  the  case  is  not  within  the 
rule  we  have  been  considering;  and  the  defendant 
may  be  convicted,  simply  upon  proof  of  the  con- 
tradictory evidence  given  by  him  on  the  two  occa- 
sions. (/) ! 

(e)  2  Ev.  Poth.  280.  (A)  10  Cox.  C.  C.  66,  72. 

(/)  R.  v.  Carr,  I  Sid.  419  ;  Resol.  (*)  R.  v.  Knill,  5   B.  &  Al.  939,  n. 

{g)  2  Den.  C.  C.  396. 

1  Said  Mr.  Justice  Wayne,  in  delivering  the  opinion  of  the 
Supreme    Court    of  the    United    States,   in    United    .States    v. 


QUANTITY  OF  EVIDENCE  REQUIRED.     1027 

6ll.  2.  The  next  exception  is  in  the  proof  of  wills 
attested  by  more  than  one  witness,  in  the  manner 
formerly  required  by  the  Statute  of  Frauds,  29  Car.  2, 

Wood,  14  Pet.  440  :  "  At  first,  two  witnesses  were  required  to 
convict  in  a  case  of  perjury,  both  swearing  directly  adversely 
from  the  defendant's  oath  ;  contemporaneously  with  this  requi- 
sition, the  larger  number  of  witnesses  on  one  side  or  the 
other  prevailed;  then  a  single  witness,  corroborated  by  other 
witnesses,  swearing  by  circumstances  bearing  directly  upon 
the  imputed  corpus  delicti  of  a  defendant,  was  deemed  suf- 
ficient. Next,  as  in  the  case  of  Rex  v.  Knill,  5  B.  &  A.  929  n., 
with  a  long  interval  between  it  and  the  preceding,  a  witness 
who  gave  proof  only  of  the  contradictory  oaths  of  the  de- 
fendant on  two  occasions  (one  being  an  examination  before 
the  House  of  Lords,  and  the  other,  before  the  House  of  Com- 
mons), was  held  to  be  sufficient,  though  this  principle  had  been 
acted  on  as  early  as  1764,  by  Justice  Yates  (as  may  be  seen  in 
the  note  to  Rex  v.  Harris,  5  B.  &  A.  937),  and  was  acquiesced 
in  by  Lord  Mansfield,  and  Justices  Wilmont  and  Aston.  We 
are  aware  that  in  a  note  to  Rex  v.  Mayhew,  6  C.  &  P.  315,  a 
doubt  is  implied  concerning  the  case  decided  by  Justice  Yates ; 
but  it  has  the  stamp  of  authenticity,  from  its  having  been  re- 
ferred to  in  a  case  happening  ten  years  afterwards,  before  Jus- 
tice Chambre  (as  will  appear  by  the  note  in  6  B.  &  A.  537). 
Afterwards,  a  single  witness,  with  the  defendant's  bill  of  costs 
(not  sworn  to),  delivered  by  the  defendant  to  the  prosecutor, 
was  held,  in  lieu  of  a  second  witness,  sufficient  to  contradict 
his  oath  ;  and  in  that  case,  Lord  Denman  says,  '  A  letter  writ- 
ten by  the  defendant,  contradicting  his  statement  on  oath, 
would  be  sufficient  to  make  it  unnecessary  to  have  a  second 
witness'  (6  C.  &  P.  315).  We  thus  see  that  this  rule,  in  its 
proper  application,  has  been  expanded  beyond  its  literal  terms, 
as  cases  have  occurred  in  which  proofs  have  been  offered, 
equivalent  to  the  end  intended  to  be  accomplished  by  the  rule." 
"  The  principle  of  the  relaxation  of  the  old  rule,"  says  Green- 
leaf  (On  Evidence,  §  257),  "is  merely  this,  that  the  evidence 
must  be  something  more  than  sufficient  to  counterbalance  the 
oath  of  the  prisoner,  and  the  legal  presumption  of  his  inno- 
cence. The  oath  of  the  opposing  witness,  therefore,  will  not 
ivail  unless  it  be  corroborated  by  other  independent  circum- 
stances. But  it  is  not  precisely  accurate  to  say  that  these  ad- 
ditional circumstances  must  be  tantamount  to  another  witness. 
The   same  effect   being  given   to   the  oath  of  the    prisoner   as 


1028     SECONDARY    RULES     0E    EVIDENCE. 

c.  3,  s.  5,  and  now  by  the  7  Will.  4  &  1  Vict.  c.  26 
and  15  &  16  Vict.  c.  24.  (/)  The  practice  under 
both  these  statutes  is  thus  stated  in  a  text-book  : 
"  Where  an  instrument  requiring  attestation  is  sub- 
scribed by  several  witnesses,  it  is  only  necessary,  at 
law,  to  call  one  of  them  ;  and  the  same  rule  prevails 
in  Chancery,  excepting  in  the  case  of  wills  ;  with 
respect  to  which  it  has  for  many  years  been  the 
invariable  practice  of  courts  of  equity,  to  require  that 
all  the  witnesses  who  are  in  England,  and  capable  of 
being  called,  should  be  examined.  The  reasons  for 
this  exception  appear  to  be,  that  frauds  are  frequently 
practiced  upon  dying  men,  whose  hands  have  survived 
their  heads, — that  therefore  the  sanity  of  the  testator 
is  the  great  fact  to  which  the  witnesses  must  speak 
when  they  come  to  prove  the  attestation, — and  that 
the  heir  at  law  has  a  right  to  demand  proof  of  this 
fact,  from  every  one  of  the  witnesses  whom  the  statute 
has  placed  about  his  ancestor.  These  will  probably 
be  deemed  satisfactory  reasons  for  the  rule ;  but 
should  the  soundness  of  the  reasons  admit  of  any 
doubt,  the  inflexibility  of  the  rule  admits  of  none  , 

(/)  Seebk.  2,  pt.  3.  ch.  1,  §  222. 

though  it  were  the  oath  of  a  credible  witness,  the  scale  of  evi- 
dence is  exactly  balanced,  and  the  equilibrium  must  be  de- 
stroyed by  material  and  independent  circumstances  before  the 
party  can  be  convicted.  The  additional  evidence  need  not  be 
such  as,  standing  by  itself,  would  justify  a  conviction  in  a 
case  where  the  testimony  of  a  single  witness  would  suffice  for 
that  purpose.  But  it  must  be  at  least  strongly  corroborative 
of  the  testimony  of  the  accusing  witness."  And  see  State  v. 
Hayward,  1  Nott.  &  McC.  547 ;  State  v.  Molier,  1  Dev.  263  ; 
State  v.  Norris,  9  N.  H.  96  ;  Commonwealth  v.  Pollard,  12 
Mete.  225  ;  State  v.  Wood,  17  Iowa,  iS;  Respublica  v.  Newell,  3 
Yeates,  407;  State  v  Porter,  2  Hill,  611;  Dodge  v.  State,  4 
Zabr.  (N.  J.)  455. 


QUANTITY  OF  EVIDENCE  REQUIRED.     1029 

and  it  applies  in  full  force,  even  to  issues  which  are 
directed  by  a  court  of  equity  to  be  tried  by  a  jury. 
On  such  occasions,  it  is  usual  to  say  that  all  the  sub- 
scribing witnesses  must  be  called,  in  order  to  satisfy 
the  conscience  of  the  Lord  Chancellor."  {&)  x 

.612.  3.  Another  exception  to  this  rule  was  in  the 
"  Trial  by  witnesses,"  or,  as  our  old  lawyers  expressed 
it,  "  Trial    by    proofs,"  (/) — expressions  used    in    our 


(k)  Tayl.  Ev.  §  1652,  4th  Ed.  See 
also  2  Ph.  Evid.  463,  inth  Ed.  ;  Bow- 
man v.  Bowman,  2  M.  &  Rob.  501  ; 
McGregor  v.  Topham,  3  Ho.  Lo.  Cas. 
132. 

(/)  The  existence  of  this  exception 
to  the  general  rule  of  evidence  having 
been  doubted,  and  even  denied,  we 
propose  in  this  note  to  lay  before  our 
readers  the  arguments  and  authorities 
on  the  subject.  Most  of  the  modern 
treatises  on  evidence  make  no  mention 
of  the  exception  ;  and  in  some  of  the 
earlier  editions  of  Mr.  Phillipps'  work 
(see  7th  Ed.,  A.  d.  1829),  Shotter  v, 
Friend,  Carth.  142,  is  cited  as  a 
ground  lor  its  rejection,  where  Lord 
Chief  Justice  Holt  is  reported  to  have 
said,  p.  144,  although  the  case  did  not 
turn  on  the  point  now  under  consider- 
ation, "  it  was  not  necessary  in  any 
case  at  common  law,  that  a  proof  of 
matter  of  fact  should  be  made  by  more 


than  one  witness  ;  for  a  single  testi- 
mony of  one  credible  witness  was 
sufficient  to  prove  any  fact  ;  and  the 
authorities  cited  in  1  Inst.  6  b,  did  not 
warrant  that  opinion,  which  was  there 
founded  on  them."  In  the  report  of 
the  same  case  in  1  Shower,  15S,  172, 
by  the  name  of  Shutter  et  icx  v.  Friend, 
the  Lord  Chief  Justice  is  mentioned 
as  citing,  in  support  of  his  position, 
F.  N.  B.  97,  and  23  or  33  Hen.  VI 
8  (probably  meant  for  33  Hen.  VI,  8, 
pi.  23)  ;  but  on  the  other  hand,  Eyres, 
J.,  is  represented  as  saying  (p.  16 1),  that 
"  where  trial  is  not  by  jury  but  per 
testes,  there  must  be  two  in  all  cases  ;" 
so  that  the  dicta  in  that  case  go  far  to 
neutralize  each  other.  A  third  report 
is  to  be  found  in  Holt,  752,  which, 
both  in  the  name  and  substance  of  the 
case,  agrees  with  that  in  Carthew. 
The  authorities  cited  by  the  Lord 
Chief  Justice,  at  the  utmost  only  show, 


1  In  New  York,  the  execution  of  a  will  may  be  proved,  on 
a  trial  at  law,  by  one  witness,  if  he  is  able  to  prove  its  perfect 
execution.  Corn  well  v.  Wooley,  1  Abb.  App.  Dec.  (N.  Y.) 
441  ;  S.  C.  43  How.  Pr.  475.  And  a  will  maybe  sustained,  even 
in  opposition  to  the  positive  testimony  of  one  or  more  of  the 
subscribing  witnesses  swearing  that  the  formalities  required 
by  statute  have  not  been  complied  with,  if,  from  other  testi- 
mony offered,  a  court  or  jury  is  satisfied  that  the  contrary  was 
the  face.  Jackson  v.  Christman,  4  Wend.  277  ;  Peebles  v. 
Case,  2  Bradf.  226;  Chaffer  v.  Baptist,  &c.  Society,  10  Paige, 
jauncey  v.  Thorne,  2  Barb.  Ch.  40. 


1030     SECONDARY    RULES     OF    EVIDENCE. 


books,  to  designate  a  few  cases  which  were  tried  by 
the  judges  instead  of  a  jury.  It  is  not  easy  to  fix 
precisely  what  these  cases  were.     About  one,  indeed, 


that  two  witnesses  were  not  required 
to  prove  the  summons  of  the  tenant  tc 
a  real  action,  if  indeed  they  go  so  far; 
but  they  certainly  do  not  in  any  de- 
gree touch  the  general  question  ;  and 
his  attack  on  those  cited  in  the  I  Inst. 
seems  founded  on  what  is  either 
wrong  reference  or  misprint.  That 
passage  (Co.  Litt.  6  b)  runs  thus,  "  It 
is  to  be  known,  that  when  a  trial  is 
by  witnesses,  regularly  the  affirmative 
ought  to  be  proved  by  two  or  three 
witnesses,  as  to  prove  the  summons  of 
the  tenant,  or  the  challenge  of  a  juror 
and  the  like.  But  when  the  trial  is 
by  verdict  of  twelve  men,  there  the 
judgment  is  not  given  upon  witnesses 
or  other  kind  of  evidence,  but  upon 
the  verdict  ;  and  upon  such  evidence 
as  is  given  to  the  jury,  they  give  their 
verdict."  For  this, — in,  we  believe, 
all  the  editions  of  Coke  upon  Little- 
ton, certainly  both  in  that  of  1633  and 
the  last  one  of  1832, — are  cited  Mirror, 
c.  3  ;  Plowd.  10  ;  Bract,  lib.  5,  fol. 
400.  Now  the  last  two  of  the^e  are 
wholly  irrelevant  ;  and  were  most 
probably  inserted  by  mistake  for 
Plowd.  8  and  Bract,  lib.  5.  fol.  354  b, 
which  are  cited  by  Sir  Edw.  Coke  in 
3  Inst.  26,  when  speaking  of  two  wit- 
nesses in  cases  of  treason,  and  are 
certainly  some  authority  in  lus  favor  ; 
and  his  remaining  quotation,  the 
Mirror,  c.  3  (see  sect.  12),  expre>sly 
states  it  to  be  a  good  exception  of 
summons,  that  the  party  "  was  not 
summoned,  or  not  reasonably  sum- 
moned, or  that  he  received  the  sum- 
mons by  no  freeman,  or  but  by  one 
freeman." 

Many  other  authorities  might  be 
cited  to  establish  the  position,  that 
two  witnesses  are    required  on  a  trial 


by.  witnesses  ;  and  what  is  more  im- 
portant, they  generally  agree  in  the 
reason  for  this,  namely,  the  absence  of 
a  jury.  Thus  Lord  Chief  Baron 
Gilbert,  says,  "  there  are  some  cases 
in  the  law  where  the  full  evidence  of 
two  witnesses  is  absolutely  necessary  ; 
and  that  is,  first,  where  the  trial  is  by 
witnesses  only,  as  in  the  case  of  a 
summons  in  a  real  action:  for  one 
man's  affirming  is  but  equal  to 
another's  denying,  and  where  there  is 
no  jury  to  discern  of  the  credibility  ot 
witnesses,  there  can  be  no  distinction 
made  in  the  credibility  of  their  evi- 
dence ;  for  the  court  doth  not  deter- 
mine of  the  preference  in  credibility 
of  one  man  to  another,  for  that  must 
be  left  to  the  determination  of  the 
neighborhood ;  therefore  where  a 
summons  is  not  made  and  proved  by 
two  witnesses,  the  defendant  may 
wage  his  law  of  non-summons,  &c." 
Gilb.  Ev.  151,4th  Ed.  The  authority 
of  Coke  has  been  already  referred  to, 
and  in  another  part  of  the  1st  Inst. 
(viz.  158  b)  he  tells  us,  that  the  proof 
of  the  summons  of  the  jurors  to  try  an 
assize  must  be  made  by  two  sum- 
rnoners  at  the  least  ;  for  which  he 
cites  Mirr.  c.  2,  s.  19,  Bract,  lib.  5,  fol. 
333.  334.  Fleta,  lib.  6,  c.  6,  and  Britt. 
c.  121.  The  first  of  these  is  irrelevant, 
and  is  probably  a  mistake  for  Mirr.  c. 
3,  s.  12,  already  mentioned  ;  the  other 
three  are  all  to  the  effect  that  there 
must  be  two  summoners.  In  Reniget 
v.  Fogassa,  H.  4  Ed.  VI.  Plowd.  12, 
Brooke,  Recorder  of  London,  says, 
arguendo,  "  It  is  true  that  there  ough 
to  be  two  witnesses  at  least,  where 
the  matter  is  to  be  tried  by  witnesses 
only,  as  matters  ate  in  the  civil  law." 
So  in  2  Ro.  Abr.  675,  Evidence,  pi.  5, 


QUANTITY  OF  EVIDENCE  REQUIRED.     1031 

there  can  be  no  question,  viz.,  where  on  a  writ  of  dower 
the  tenant  pleaded  that  the  husband  of  the  demandant 
was  still  living;  (m)  and  Finch,  (//)  relying  on  the 
obiter  dictum  of  the  court  in  8  Hen.  VI.  23,  pi.  7,  says 
that  this  was  the  only  case  in  which  trial  by  witnesses 
was  allowed.  But  other  authorities  mention  several 
more  ;  e.  g.,  the  summons  of  a  tenant  in  a  real  action  ; 
(0)  the  summons  of  a  juror  in  an  assize,  (f>)  and  the 
challenge  of  a  juror ;(q)  and  two  viewers  are  said  to 
have  been  required  in  an  action  of  waste,  (r)  Mr. 
Justice  Blackstone  endeavors  to  reconcile  this  dis- 
crepancy, by  supposing  that  the  plea  of  the  life  of  the 
husband  in  a  writ  of  dower,  was  the  only  case  in  which 
the  direct  issue  in  the  cause  was  tried  by  witnesses,  all 
the  other  instances  being  of  collateral  matters,  (s)  But 
it  is  not  quite  clear  that  in  ancient  times,  issue  taken 
on  the  death  of  the  husband  in  a  cui  in  vita,  it)  and  in 
some  other  cases,  {ti)  was  not  tried  by  witnesses  ;  and 
with  respect  to  the  action  of  dower,  although  modern 


"  Un  testimoigne  est  bone,  per  Atkins,  (m)  3  Blackst   Coram.  336  ;  Finch, 

et  Hoke  dit  doit  estre  2  al   meins,  ou  Law,  423  ;  8    Hen.  VI.   23,  pi.   7  ;  56 

est  trie  per   testimoignez."     See  aLo  Hen.  III.,  cited  2  Rol.  Abr.  578,  pi. 

'1' rials  per  Pais,  363.  14. 

The  general  opinions  of  the  middle  (>i)  Finch,  in  loc.  cit. 

ages,  render  the  existence  of  the  ex-  (0)  Co.  Litt.  6b  ;  Gilb.  Ev,   151,4th 

ception    in    question   extremely  prob-  Ed. 

able.     Our   old    lawyers    were    by  no  (/)  Co.  Litt.  158b. 

means  emancipated  from  the  notion,  (q)  Co.    Litt.    6t.       This    probably 

the    grounds    of   which  we    have    ex-  mean-,  an  objection  to  the  sufficiency 

amined  supra,  £  597,  note  (A),  that  the  of  the  summons   of  a   juror  in  a  real 

divine  law  required  two   witnesses  in  action;  see  2  Hawk.  P.  C  c.  2-,  s.  131. 

every  case,  and  that  human  legislation  Certain  it  is  that  no   such   rule   is  ob- 

should  be  in  accordance  with  it  ;  see  served     in     modern    practice    when  a 

in  particular,  Plowd.  8  ;  Forte-cue,  cc.  juror  is  challenge 

31   &    32  ;  and    3  Inst.   26  :   but    they  (r)  Clayt.  89,  pi.  KO 

consider  this  rule  complied  with  when  (s)  3  Blackst.  Comm.  336. 

the    issue  was  determined   by  a  jury,  (/)  2  Edw.  II.  24,  til.  Cui  in  Vita, 

who    in    early   times    were    a    sort    of  («)  See  36  Ass.  pi.  6  ;  39   Id.  pi.  Q  1 

witnesses  themselves;  see  bk.  I,  pt.  2,  30  id.  pi.  26  ;  43  Id.  pi.  26 
§   "9 


1032     SECONDARY    RULES     OF    EVIDENCE. 

authorities  speak  of  the  above  plea  as  a  plea  in  bar,  (V) 
some  of  the  old  authorities  treat  it  as  a  dilatory  plea. 
(y)  Real  and  mixed  actions  are  now  abolished  by  3 
&  4  Will.  4,  c.  27,  s.  36,  and  23  &  24  Vict.  c.  126,  s.  26; 
but  it  may  be  a  question  whether  two  witnesses  are 
not  still  required  when,  in  an  action  for  dower  brought 
in  the  form  given  by  the  latter  act,  the  death  of  the 
husband  is  disputed. 

613.  The  evidence  on  this  kind  of  trial  need  not 
be  direct — it  is  sufficient  if  the  witnesses  speak  to 
circumstances,  giving  rise  to  a  reasonable  intendment 
or  presumption  of  the  truth  of  the  fact  which  they  are 
called  to  prove.  (2) 

614.  4.  There  seems  to  be  some  difference  among 
the  authorities,  as  to  whether  two  witness  were  re- 
quired on  a  claim  of  villenage  or  niefty.  (a)  If  such 
were  the  rule,  it  was  a  good  one  in  favorcm  libertatis ; 
but  it  is  needless  to  pursue  the  inquiry  at  the  present 
day. 

615.  We  now  proceed  to  the  statutory  exceptions. 
Of  these  the  most  important  and  remarkable,  is  found 
in  the  practice  on  trials  for  high  treason  and  misprision 
of  treason.  The  better  opinion  and  weight  of  authority 
are  strongly  in  favor  of  the  position,  that  at  the  com- 
mon law  a  single  witness  was  sufficient  in  high  treason, 
and  a  fortiori  in  petty  treason  or  misprision  of  trea- 
son, (b)  In  the  3  Inst.  26,  however,  Sir  Edward  Coke 
says,  "  It  seemeth  that  by  the  ancient  common  law,  one 

(x)  Com.    Dig.    Pleader,   2    Y.  9  ;  2  (b)  2  Hawke.P.  C.  c.  25,  s.  131,  and 

Wms.  Saund.  441!,  6th  Ed.  c.  46,  s.  2  ;   Foster,    Cr.    Law.   232  ;  1 

( y)  Bract,  lib.  4,  c.  7,  fol.  301,  302  ;  Greenl.  Ev.  §  255,  7th  Ed.  ;  Tayl.  Ev. 

Dyer,  185a,  pi.  65.  5  869,  4th  Ed.;  The  Case  of  Clipping, 

(z)  Thome  v.  Rolff,   Dyer,  185a,  pi.  T.  Junes,  263  ;   Bro.  Abr.  Corone,  pi. 

65  ;  1  Anders.  20,  pi.  42.  219  ;  Dyer,  132,  pi.  75  ;  Kel.   18   and 

(a)  S                in,  c.  31  ;  2    Rol.  Abr.  49  ;  1  Hale,  P.  C  297-301,  324;  2  Id. 

t>75.  Evidence,  pi.  3  ;  F.  N.  B.  78,  II.,  230,  287. 
ani  Fitz.  Abr.  Villenage,  pi.  39 


QUANTITY  OF  EVIDENCE  REQUIRED.     103;^ 

accuser  or  witness  was  not  sufficient  to  convict  any  per- 
son of  high  treason.  .   .   .  And  that  two  witnesses  be 
required,  appeareth  by  our  books  "  (here  he  cites  several 
authorities,  all  of  which  relate  to  the  two  witnesses  re- 
quired on  a  trial  by  witnesses,  (V)and  have  no  reference 
to  treason  or  criminal  proceedings),  "and  I  remember 
no  authority  in  our  books  to  the   contrary  :  and  the 
conmon  law  herein  is  grounded  upon  the  law  of  God, 
expressed  both  in  the  Old  and  New  Testament ;  Deut. 
xvii.  xix.  15;  Matt,  xviii.  16;  John  xviii.  23  (perhaps 
meant  for  John  viii.  17);  2  Cor.  xiii.  1  ;  Heb.  x.  28; 
'  In  ore  duorum  aut  trium  testium   peribit  qui  inter- 
ficietur;  Nemo  occidatur  uno  contra  se  dicente  testi- 
monium.' "     Now  supposing  these  and  similar  passages 
of  Scripture  to  be  applicable  to  municipal  law  at  all,  (d) 
a  decisive  answer  to  Sir  Edw.  Coke  is  given  by  Ser- 
jeant  Hawkins,  (e)  viz.,  that  his  argument  proves  too 
much ;  for  that  "  whatsoever  may  be  said  either  from 
reason  or  Scripture  for  the  necessity  of  two  witnesses 
in  treason,  holds  as  strongly  in  other  capital  causes, 
and  yet  it  is  not  pretended  that  there  is,  or  ever  was, 
any  such  necessity  in  relation  to  any  other  crime  but 
treason."     Besides,  the  authority  of  some  parts  of  the 
3rd    Institute  has    been  doubted.  (/)      Perhaps  thj 
hypothesis  offered  in  a  former  part  of  this  chapter,  re- 
specting the  origin  of  the  rule  requiring  two  witnesses 
in  perjury,  may  assist  us  here    also,  viz.,  that  our  old 
'    lawyers  considered    two    witnesses   necessary    on    all 
criminal  charges,  including  treason  ;    but  deemed  this 
requisite  complied  with  when  the  trial  was  by  jury, 
who,  in  those  days,  were  looked  on  as  witnesses,  (g  ) 
616.  Taking  for  granted,  then,  that,  at  common 

(c)  See  supra,  %  612,  note  (/).  (e)  2  Hawk.  P.  C.  c.  25,  s.  131. 

(d)  See  or  this  subject  supra, %  597,  )  Kely,  49. 
note  {h)                                                           (£J  Supra,  g  603. 


io34     SECONDARY    RULES     OF    EVIDENCE. 

law,  a  charge  of  treason  might  be  maintained  on  the 
testimony  of  a  single  witness,  the  statutes  on  the  sub- 
ject are  as  follows:  The  i  Edw.  6,  c.  12,  after  repeal- 
ing several  statutes  by  which  various  treasons  and 
felonies  were  created,  enacts,  in  its  22nd  section,  that 
no  person  shall  be  indicted,  arraigned,  condemned,  or 
convicted  for  treason,  petit  treason,  misprision  of  trea- 
son, &c.,  unless  he  shall  be  accused  by  two  sufficient 
and  lawful  witnesses,  or  shall  willingly  without  vio- 
lence confess  the  same.  And  by  the  5  &  6  Edw.  6,  c. 
11,  s.  12,  no  person  shall  be  indicted,  arraigned,  con- 
demned, convicted,  or  attainted  for  any  treason,  &c, 
unless  he  shall  be  accused  by  two  lawful  accusers ; 
which  said  accusers  at  the  time  of  the  arraignment  oi 
the  party  accused,  if  they  be  then  living,  shall  be 
brought  in  person  before  him,  and  avow  and  maintain 
what  they  have  to  say  against  him,  &c. ;  unless  he  shall 
willingly  without  violence  confess  the  same.  But  the 
subsequent  statute,  1  &  2  P.  &  M.  c.  10,  s.  7,  having 
directed  that  all  trials  for  treason  should  be  had  and 
used,  only  according  to  the  due  order  and  course  of 
the  common  law,  and  not  otherwise ;  the  judges  of 
those  days  doubted,  or  affected  to  doubt,  whether  the 
above  mentioned  statutes  of  Edw.  VI.  were  not  re- 
pealed. The  question  was  raised  in  several  cases, 
and  the  doubt  finally  overruled  in  the  time  of 
Charles  II.  (A) 

617.  Several  other  points  were  raised  on  the  con- 
struction of  those  statutes,  which  are  now  interesting 
only  as  matter  of  legal  history :  (z)  for  the  modern 
law  on  this  subject  is  contained  in  the  statute  7  &  8 
Will.  3,  c.  3,  "  For  regulating  of  Trials  in  cases  of  Trea- 
son and  Misprision  of  Treason."     The  second  section 

(A)  Fost.  C.  L.  237.  (i)  See  Fost.  C.  L.  232-240. 


QUANTITY  OF  EVIDENCE  REQUIRED.     1035 

of  that  statute  enacts,  "  that  no  person  shall  be  in- 
dicted, tried,  or  attainted,  of  high  treason,  whereby  any 
corruption  of  blood  may  or  shall  be  made  to  any  such 
offender,  &c.,  or  of  misprision  of  such  treason,  but  by 
and  upon  the  oaths  and  testimony  of  two  lawful  wit- 
nesses, either  both  of  them  to  the  same  overt  act,  or 
one  of  them  to  one,  and  the  other  of  them  to  anothei 
overt  act  of  the  same  treason ;  unless  the  party  in- 
dicted and  arraigned,  or  tried,  shall  willingly,  without 
violence,  in  open  court,  confess  the  same,  or  shall  stand 
mute,  or  refuse  to  plead." 

618.  Various  reasons  have  been  suggested  for  this 
alteration  of  the  common  law.  At  the  trial  of  Viscount 
Stafford,  (/)  in  1680,  before  the  House  of  Lords,  Lord 
Chancellor  Finch,  we  are  informed,  "was  pleased  to 
communicate  a  notion  concerning  the  reason  of  two 
witnesses  in  treason,  which  he  said  was  not  very  familiar 
he  believed;  and  it  was  this.  Anciently  all  or  most 
of  the  judges  were  churchmen  and  ecclesiastical  per- 
sons, and  by  the  canon  law  now,  and  then  in  use  over 
all  the  Christain  world,  none  can  be  condemned  of 
heresy  but  by  two  lawful  and  credible  witnesses  ;  and 
bare  words  may  make  a  heretic,  but  not  a  traitor,  and 
anciently  heresy  was  treason;  and  from  thence  the 
parliament  thought  fit  to  appoint,  that  two  witnesses 
ought  to  be  for  proof  of  high  treason."  This  explana- 
tion certainly  receives  some  color  from  one  of  the 
statutes  repealed  by  the  1  Edw.  6,  c.  r2,  namely,  the 
25  Hen.  8,  c.  14,  s.  6,  which  enacted  that  no  person 
should  be  presented  or  indicted  of  heresy,  unless  duly 
accused  and  detected  thereof  by  two  lawful  witnesses 
at  the  least.  But  heresy  being  an  ecclesiastical  offense, 
it  was  reasonable  to  adopt  the  ecclesiastical  rules  of 
proof  when  it  was  made  the  subject  of  secular  punish- 

(/)  T.  Raym.  407,  408. 


1036     SECONDARY    RULES     OF'  EVIDENCE. 

ment ;  besides,  it  is  an  offense  of  a  character  which 
would  justify  the  throwing  almost  any  amount  of  pro- 
tection round  persons  accused  of  it.  Others  consider 
the  rule  based  on  this — that,  the  accused  having  taken 
an  oath  of  allegiance,  where  a  single  witness  bears 
testimony  to  treason  committed  by  him,  there  is  only 
oath  against  oath.(i)  But  this  reasoning  is  far  from 
satisfactory  ;  for  the  accused  may  never  have  taken  an 
oath  of  allegiance,  and  even  if  he  has,  all  oaths  are  not 
observed  with  equal  fidelity.  Besides,  the  i  Edw.  6, 
c.  12,  extends  the  rule  to  cases  of  petty  treason,  and 
to  the  speaking  of  certain  words,  rendered  punishable 
under  that  act  by  imprisonment  and  forfeiture  of 
goods.  The  true  reason  for  requiring  two  witnesses 
in  high  treason  and  misprision  of  treason — unquestion- 
ably that  which  influenced  the  framers  of  the  modern 
statutes  on  the  subject,  whatever  may  have  been  the 
motives  of  those  of  the  earlier  ones— is  the  peculiar 
nature  of  these  offenses,  and  the  facility  with  which 
prosecutions  for  them  may  be  converted  into  engines  01 
abuse  and  oppression.  (/)  For  although  treason,  when 
clearly  proved,  is  a  crime  of  the  deepest  dye,  and  de- 
servedly visited  with  the  severest  punishment ;  yet  it  is 
one  so  difficult  to  define — the  line  between  treasonable 
conduct  and  justifiable  resistance  to  the  encroachments 
of  power,  or  even  the  abuse  of  constitutional  liberty,  is 
often  so  indistinct — the  position  of  the  accused  is  so 
perilous — struggling  against  the  whole  power  and  for- 
midable prerogatives  of  the  crown — that  it  is  the  im- 
perative duty  of  every  free  state  to  guard,  with  the  most 
scrupulous  jealousy,  against  the  possibility  of  such  pro- 
ecutions  being  made  the  means  of  ruining  political  op- 
ponents, {fit)     With  this  view  the  7  &  8  Will.  3,  c.  3, 

[k)  4  Blackst.  Comml  358.  Ev.  152,  4U1  Ed. 

(/)  4    '  im.    35 S  ;    Gill..  (ot)  Gilb.  Ev.  152,   .ih  Ed. 


QUANTITY  OF  EVIDENCE  REQUIRED.     1037 

besides  requiring  two  witnesses  as  already  stated,  enacts,' 
inter  alia,  that  no  person  shall  be  tried  for  any  of  the 
treasons  therein  mentioned,  except  attempts  to  assas- 
sinate the  king,  unless  the  indictment  be  found  within 
three  years  after  the  offense  committed ;  («)  that  the 
accused  shall  have  a  copy  of  the  indictment  five  days 
before  the  trial,  (p)  and  a  copy  of  the  jury  panel  two 
days  before  the  trial.  (/)  And  by  the  7  Anne,  c.  21, 
s.  1 1  (in  part  repealed  and  re-enacted  by  6  Geo.  4,  c. 
50),  a  copy  of  the  indictment,  a  list  of  the  witnesses 
to  be  produced,  and  of  the  jurors  impanelled,  are  to  be 
delivered  to  him  a  certain  time  before  the  trial.  All 
these  protections  have  been  taken  away,  by  subsequent 
statutes,  from  certain  cases  of  treason  and  misprision 
of  treason,  which,  though  within  the  letter,  are  certainly 
not  within  the  spirit  of  the  former  enactments,  viz., 
where  the  overt  acts  of  treason  charged  in  the  indict- 
ment are  the  assassination  of  the  sovereign,  or  any 
direct  attempt  against  his  life  or  person,  (q) 

619.  The  principle  of  the  7  &  %  Will.  3,  c.  3,  re- 
quiring two  witnesses  in  treason,  has  however  been 
severely  attacked.  Bishop  Burnet,  speaking  of  that 
statute  shortly  after  it  was  passed,  said  the  design  of  it 
seemed  to  be  to  make  men  as  safe  in  all  treasonable 
conspiracies  and  practices  as  possible  ;  (r)  but  he  after- 
wards makes  some  observations  which  it  would  be  diffi- 
cult to  reconcile  with  this  language,  (s)  Bentham,  as 
might  be  expected,  strongly  condemns  it ;  (/)  but  his 
chief  arguments  are  directed  against  the  portions  now 
•xpealed  by  the  39  &  40  Geo.  3,  c.  93,  and  the  5  &  6 

(«)  7  &  3  Will.  3,  c.  3,  s.  6.  Ev.  489. 

(<?)  Id.  sect.  i.  (s)  Fost.  in  loc.  cit.    The  passages  re- 

(/)  Id.  sect.  7.  erred    to    will   be    found   in    Burnet' 

(q)  39  &  40  Geo.  3,  c.  93,  and  5  &  6  History   of  his   own    Times,  vol.  2,  p 

Vict.  c.  51.  14T.  Ed.  1734. 

(r)  Fost.  C.  L.   221     5   Beiuh.  Jud.  (/)  5  Beuth.  Jud.  Ev.  485-495. 


1038     SECONDARY     RULES     OF    EVIDENCE. 

Vict.  c.  51.  («)  He  observes,  however,  that  after  the 
passing  of  this  statute,  "a  minister  might  correspond 
(as  so  many  ministers  were  then  actually  correspond- 
ing) with  the  exiled  king  by  single  emissaries  and  be 

safe As  to  the    other    provisions,    then, 

all  of  them  have  their  merit ;  some  of  them  were  no 
more  than  the  removal  of  barefaced  injustice  ;  but  as 
to  this,  it  was  specially  levelled,  not  against  false  ac- 
cusations, but  against  true  ones."  (x)  In  Taylor  on 
Evidence  also  (y)  we  find  this  passage:  "  A  man  of  calm 
reflection  may  think  that  the  legislature  would  confer 
no  trifling  benefit  on  the  country,  if  it  defined  the  law 
of  treason  with  greater  accuracy,  and  if,  by  abolishing 
alike  the  cruelties  which  make  it  abhorrent,  and  the 
protections  which  make  it  ridiculous,  it  rendered  the 
punishment  of  traitors  more  certain  and  less  barbarous." 
All  this  reasoning,  however,  is  more  specious  than 
sound.  It  seems  based,  in  some  degree  at  least,  on  the 
false  principle  that  has  been  examined  in  the  Introduc- 
tion to  this  work,  (2)  and  which  is  to  be  found  more  or 
less  in  every  part  of  Bentham's  Treatise  on  Judicial  Evi- 
dence, viz., that  the  indiscreet  passivenessof  the  law  is  as 
great  an  evil  as  its  corrupt  or  misdirected  action  ;  and 
consequently, that  the  erroneous  conviction  and  punish- 
ment of  an  innocent,  a  violent,  or  even  a  seditious  man, 
for  the  offense  of  treason,  works  the  same  amount  of  mis- 
chief as  the  escape  of  a  traitor  from  justice,  and  no 
more.  Besides,  the  above  authors  appear  to  have  as- 
sumed, that  in  the  case  put  of  ministers  corresponding 
with  attainted  persons  by  means  of  a  single  emissary, 
and  such  like,  the  incapacity  to  prosecute  for  treason 
involves  impunity  to  the  criminal.     They  forget  that 

(it)  See  supra,  sect.  618,  and  infra,  (y)  Tayl.  Ev.  sect.  871,  5th  Ed. 

bk.  4,  pt.  1,  ch.  2.  (s)  Inlrod.  pi   2,  sect.  49. 

(jr)  5  lienth.  Jud.  Ev.  490. 


QUANTITY  OF  EVIDENCE  REQUIRED.     1039 

there  has  always  been  such  an  offense  as  seditious  con- 
duct, which,  being  only  a  misdemeanor,  may  be  proved 
by  one  witness,  and  which  does  not  merge  in  the  trea- 
son, (a)  And  of  late  years  the  legislature  has  created 
an  intermediate  offense  between  treason  and  sedition, 
by  making  various  acts,  committed  against  the  crown 
and  government  of  the  country,  felony,  and  severely 
punishable.  (&)  By  the  law  as  it  stands,  persons  some- 
times escape  with  a  conviction  for  felony  or  sedition 
whose  conduct,  considered  with  technical  accuracy, 
amounts  to  treason.  But  on  the  other  hand,  those  who 
are  innocent  of  that  terrible  crime  lie  under  no  dread  of 
being  falsely  accused  of  it ;  and  when  a  conviction  for 
treason  does  take  place,  it  is  on  such  unquestionable 
proof,  that  the  blow  descends  on  the  disaffected  portion 
of  society  with  a  moral  weight,  increased  a  hundredfold 
by  the  moderation  of  the  executive  in  less  aggravated 
%ases.  The  extending  the  protection  to  charges  of  petty 
treason,  as  was  done  by  1  Edw.  6,  c.  12,  was  idle ;  the  7  & 
8  Will.  3,  c.  3,  it  will  be  observed,  avoided  that ;  and  the 
offense  itself  is  now  abolished  by  9  Geo.  4,  c.  31,  s.  2. 
620.  The  rule  requiring  two  witnesses  in  treason, 
only  applies  to  the  proof  of  the  overt  acts  of  treason 
charged  in  the  indictment — any  collateral  matters  may 
be  proved  as  at  common  law  ;  (V)  such  as  that  the 
accused  is  a  subject  of  the  British  crown,  (d)  and  th 
like.  Nor  perhaps  does  it  hold  on  the  trial  of  collat 
eral  issues.  As,  for  instance,  where  a  prisoner  con- 
victed of  treason  makes  his  escape,  and  on  being 
retaken  and  brought  up  to  receive  judgment,  denies 

(a)  4   Bladcst.    Com.     119  ;    R.  v.      Fost.  C.  L.  240-2  ;  1  East,  P.  C.  130. 
Reading,  7  Ho.  St.  Tr.  265-7.  (J)  Fost-  C.  L.  240  ;  R.  v.  Vaughan, 

(b)  11  &  12  Vict.  c.  12.  13  Ho.  St.  Tr.  535,  per  Holt,  C.  J. 
<c)  Tayl.    Ev.   sect.   872,   4th   Ed.  ; 


1040    SECONDARY    RULES     OF    EVIDENCE. 

his  identity  with  the  party  mentioned  in  the  record 
of  conviction,  (e)  ' 

621.  There  are  other  statutory  exceptions  to  the 

(e)  In   such    cases    the  prisoner  has      no  peremptory  challenge.     Ratcliffe's 

Case,  F0.1t.  C  L.  42. 

1  In  Burr's  Trial,  Causes  Celebres,  vol.  4,  p.  195,  Chief 
Justice  Marshall  said  that  "  though  the  constitution  declared 
that  two  witnesses  are  necessary  to  produce  conviction  (Const. 
U.  S.  art.  3,  §  3),  yet  it  may  not  be  so  strictly  and  absolutely 
necessary  to  authorize  an  indictment  being  found  a  true  bill. 
My  present  impression  is  that  though  there  must  be  two  wit- 
nesses to  the  general  charge  of  treason,  yet  that  one  witness 
may  be  sufficient  to  prove  one  act,  and  another  to  prove 
another.  .  .  .  The  law  books  made  this  discrimination 
between  a  trial  and  an  indictment."  The  great  trial  for 
treason  in  the  United  States  is  and  must  continue  to  be  that 
of  Aaron  Burr,  Ex-Vice  President  of  the  United  States, 
begun  in  the  city  of  Richmond,  Friday,  May  22nd,  1807,  and 
concluding  Tuesday,  September  1st,  of  that  year.  Never 
before  or  since  in  the  annals  of  the  United  States  has  such  a 
court  been  convened.  From  the  Bench,  composed  of  the 
venerable  Chief  Justice  Marshall  and  Judge  Griffin,  to  the 
counsel  engaged,  all  were  men  whose  learning  and  eminent 
talents  are  historic.  A  superb  and  comprehensive  report 
of  this  memorable  trial  has  been  recently  published  in 
Cockcroft's  "  Causes  Celebres,"  vols.  IV.  and'  V.  (New  York, 
James  Cockcroft  &  Co.,  1875).  See  the  Opinion  of  Marshall, 
C.  J.,  as  to  the  order  of  evidence  in  trials  for  treason  and  the 
overt  act,  vol.  IV.,  p.  531,  and  Mr.  Martin's  argument  as  to 
the  overt  act,  reviewing  the  antecedent  authorities,  Id.  p.  321, 
and  particularly  the  opinion  of  the  Chief  Justice,  delivered 
Monday,  August  31st,  1807,  reported  in  full,  commencing  vol. 
V.  p.  495.  See  also  Story  on  the  Constitution,  §§  1796-1803  ; 
and  as  to  a  definition  of  treason  and  of  the  overt  act,  Serj.  on 
Const,  ch.  30  (2d  Ed.  ch.  32);  Ex  parte  Bollman,  4  Cranch. 
75  ;  People  v.  Lynch,  11  Johns.  R.  549.  And  see,  as  to  the  poi 
tion  of  the  clause  requiring  two  witnesses  to  the  overt  act,  or 
a  confession  in  open  court,  United  States  v.  Fries  (Pamphlet, 
p.  171)  ;  Wharton's  State  Trials,  486  ;  United  States  v.  Hoxie, 
1  Paine,  265  ;  United  States  v.  Hanway,  2  Wallace,  Jr.  139;  2 
Bishop  on  Crim.  Law,  1032  ;  3  Greenleaf  on  Evidence,  §  237; 
Boston   Law  Rep.  (1851),  p.  413;   Story  on  the  Constitution, 


QUANTITY  OF  EVIDENCE  REQUIRED.     1041 

rule  in  question.  By  the  7  &  8  Vict.  c.  ioi,  s.  3. 
and  8  &  9  Vict.  c.  io,  s.  6,  already  referred  to,  (/)  no 
order  of  affiliation  shall  be  made  against  the  putative 

(f)  Supra,  sect.  608,  n.  (v). 

§  1802  ;  Wharton  on  Crimes,  §  2739  (vol.  II.,  7th  Ed.).  During 
and  immediately  subsequent  to  the  Revolution,  trials  for 
treason  against  a  particular  State  in  the  Union,  were  not  in- 
frequent. In  Pennsylvania,  during  that  war,  five  persons 
were  executed  for  the  offense.  In  Massachusetts  there  were 
sixteen  capital  convictions  of  this  crime,  arising  out  of 
Shay's  Rebellion,  though  there  were  no  executions,  and  few 
lengthy  imprisonments  inflicted.  In  the  People  v.  Lynch, 
Aspinwall,  Cornell,  and  John  Hagerman,  11  Johns.  R.  549, 
the  defendant,  Mark  Lynch,  was  indicted  for  furnishing,  on 
the  1 6th  day  of  May,  1840,  and  on  other  days,  "  with  force  and 
arms,  upon  the  high  seas,  falsely,  wickedly  .  .  .  give  and 
minister  aid  and  comfort  to  the  subjects  of  the  said  king  (of 
Great  Britain),  by  then  and  there  furnishing,  supplying,  and 
delivering  fifty  barrels  of  beef,  fifty  barrels  of  pork,  fifty  hams, 
one  hundred  pounds'  weight  of  butter,  and  thirty  cheeses,  to 
divers  subjects  of  the  said  king,  &c,  in  and  on  board  a  public 
ship  of  war  belonging  to  the  said  king,  &c,  then  and  there 
lying,  and  being  called  The  Bulwark,  the  said  king,  &c,  and 
his  subjects  then  and  yet  being  at  war  with,  and  enemies  of, 
the  said  State  of  New  York,  against  the  duty  of  the  allegiance 
of  the  said  Mark  Lynch  (and  others),  and  against  the  form  of 
the  statute,"  &c.  The  court  (Kent,  Ch.  J.)  held  that  "  the 
offense  not  being  charged  as  treason  against  the  United  States, 
the  present  indictment  can  not  be  supported,  even  admitting 
this  court  to  have  jurisdiction."  We  would  barely  observe, 
however,  that  we  think  the  jurisdiction  of  the  state  courts  does 
not  extend  to  the  offense  of  treason  against  the  United  .States. 
The  judicial  power  of  the  United  States  extends  to  all  cases 
arising  under  the  constitution  and  laws  of  the  United  States. 
The  declaration  of  war  was  by  a  law  of  congress,  in  conse- 
quence of  which  it  became  criminal  in  the  prisoners  to  afford 
aid  and  comfort  to  the  enemy.  And  the  act  establishing  the 
judicial  courts  of  the  LTnited  States,  gives  to  the  circuit  courts 
cognizance,  exclusive  of  the  courts  of  the  several  states,  of  all 
crimes  and  offenses  cognizable  under  the  authority  of  th  : 
United  States,  except  where  the  laws  of  the  United  S:;.t  s 
otherwise  direct   (1  Sess.    1   Cong.  c.  20,   §    11).     In  whatever 


1042     SECONDARY    RULES     OF    EVIDENCE. 

father  of  a  bastard  child  unless  the  evidence  of  its 
mother  be  corroborated  in  some  material  particular  by 
other  testimony  to  the  satisfaction  of  the  court.  So 
by  the  32  &  33  Vict.  c.  68,  s.   2,  which  makes   the 

point  of  view,  therefore,  the  case  is  considered,  we  are  satis- 
fied that  the   present  indictment  can  not  be  supported."     And 
see  Wharton  on  Crimes,  vol.  II.,  7th  Ed.,  §  2771.     The  consti- 
tutions  or  statutes   of  several   states   declare    expressly   that 
treason  against  the  United  States  shall  be  cognizable  by  the 
state  as  treason   against   that  state.      Where,  in  case  of  insur- 
rection or  rebellion,  any  state  applies  to  the  United  States  for 
the  aid  guaranteed  it  in  such  cases  by  the  constitution,   any 
opposition    to    the  aid  so   extended    will    constitute    treason 
against  the  general  government.     Wharton  on  Criminal  Law, 
§  2770  (vol.  II.,  7th  Ed.).     Any  open  and  armed  opposition  to 
the  laws  of  a  state,  or  a  combination  and  forcible  attempt  to 
overturn  or  usurp  the  government  thereof,  is  a  treason  against 
the  particular  state.       People  v.  Lynch,   n  Johns.  549  ;  per 
Durfee,  C.  J.,  in  Dorr's  Case  (Pamphlet);  Rawle  on  the  Con- 
stitution,  305  ;   Serjeant's  Constitutional   Law,   382.     Tucker, 
in  his  note  on  Treason  (4  Tucker's  Black.  App.   21),  says  that 
every  constructive  or  interpretative  levying  of  war  against  a 
state,  unless  the  object  be  for  some  matter  of  general  concern 
to    the   United    States,  is  a   treason    against    the    state    itself, 
which  view,  says  Wharton   (on   Criminal   Law,  §  2769),  was 
said   to   have   been   adopted   by   Judge   Story,   in   charging   a 
grand  jury,  during   the   Rhode   Island  disturbances,  in  1842  ; 
and  Judge   King,  charging  the  grand  jury  in  Philadelphia,  at 
the  time  of  the  Kensington  riots,  said,  "  that  when  the  object 
of  a  riotous  assembly  is  to  prevent,  by  force  and  violence,  the 
execution  of  any  statute  of  this  commonwealth,  or,  by  force 
and  violence,  to  coerce  its  repeal  by  the  legislative  authority, 
or  to  deprive  any  class  of  the  community  of  the  protection 
afforded   by  law,  as  burning  down  all  churches  or  meeting- 
houses of  a  particular  sect,  under  color  of  reforming  a  public 
grievance,  or  to  release  all  prisoners  in  the  public  jails  and  the 
like,  and    the  rioters  proceed  to  execute,  by  force,  their   pre- 
determined objects  and  intents — they  are  guilty  of  high  trea- 
son in  levying  war  against  the  commonwealth."     But  without 
ciear  proof  of  an  intention  to  overthrow  the  government,  and 
actual  levying  of  war  against  the  state,  the  remedy  is  to  in- 
dict   for  a  seditious    conspiracy    (Brackenridge,    Misc.,    495  ; 
Wharton  on  Criminal  Law,  §  2 7 69,  vol.  II.,  7th  Ed.) 


QUANTITY  OF  EVIDENCE  REQUIRED.     1043 

parties  to  actions  for  breach  of  promise  of  marriage 
competent  to  give  evidence  therein,  it  is  provided  that 
no  plaintiff  in  such  action  shall  recover  a  verdict, 
unless  his  or  her  testimony  shall  be  corroborated  by 
some  other  material  evidence  in  support  of  such 
promise.  And  another  instance  will  be  found  in  the 
1 1  &  12  Vict.  c.  12,  s.  4,  which  enacts  that  no  person 
shall  be  convicted  of  certain  offenses  made  felony  by 
that  statute,  "  in  so  far  as  the  same  are  expressed, 
uttered,  or  declared  by  open  or  advised  speaking, 
except  upon  his  own  confession  in  open  court,  or 
unless  the  words  so  spoken  shall  be  proved  by  two 
credible  witnesses."  Seventy-four  statutes  of  this  kind 
are  said  to  have  been  passed,  between  the  1  Edw.  VI. 
a.  d.  1547)  and  the  31  Geo  III.  (a.  d.  1791).  (g) 

622.  Although,  as  has  been  shown  in  the  present 
chapter,  the  law  of  this  country  requires  a  certain 
numerical  amount  of  proofs  in  particular  cases,  it  has 
avoided  the  great  mistake  into  which  the  civilians  fell 
of  attaching  to  those  proofs  an  artificial  weight,  and 
leaves  their  value  to  the  discrimination  of  a  jury. 
From  motives  of  legal  policy,  no  decision  shall  in  such 
cases  be  based  on  the  testimony  of  a  single  witness, 
however  credible  ;  but  when  more  are  adduced,  be 
the  number  what  it  may,  their  testimony  must,  if 
untrustworthy  in  the  eyes  of  the  jury,  go  for  nothing.1 

(g)  5  Benth.  Jud.  Ev.  483. 

1  The  quantity  of  evidence  required   in   statutory  proceed 
ings  will   be  found  regulated,  in   most  cases,  by  the  statutes 
themselves.     For  careful  directions  as  to  the  evidence  required 
in  proceedings  under  statutes  regulating  mechanics'  liens,  see 
Guernsey's  Mechanics'  Lien  Law,  New  York,  1873. 


1044  FORENSIC    PRACTICE. 


BOOK  IV. 

FORENSIC     PRACTICE     AND      EXAMINATION     OP 

WITNESSES. 

PART  I. 

Forensic  Practice  with  Respect  to  Evidence. 

PARAGRAPH 

Rules  which  regulate  forensic  practice  respecting  evidence     .         .         .         623 
Division 623 

623.  The  rules  of  evidence,  especially  such  as 
relate  to  evidence  in  causa,  are  rules  of  law,  which  a 
court  or  judge  has  no  more  right  to  disregard  or  sus- 
pend, than  any  other  part  of  the  common  or  statute 
law  of  the  land,  (a)  Those  which  regulate  forensic 
practice  are  less  inflexible  :  for  although  the  mode  of 
receiving  and  extracting  evidence  is  governed  by 
established  rules,  a  discretionary  power  of  relaxing 
these  on  proper  occasions  is  vested  in  the  tribunal ; 
and  indeed  it  is  obvious,  that  an  unbending  adherence 
under  all  circumstances,  to  rules  which  are  the  mere 
forma  et  figura  judicii,  would  impede  rather  than 
advance  the  ends  of  justice. 

The  most  convenient  way  of  treating  the  present 
subject  will  be,  first  to  describe  the  course  of  a  trial, 
and  then  to  examine  the  practice  relative  to  its  prin- 
cipal incidents  as  connected  with  the  matter  before 
us.  But  before  doing  either  of  these,  it  is  advisable 
to  direct  attention  to  certain  proceedings  previous  to 
trial 

(a)  Bk.  i,  pt.  1,  g§   80,  Si,   S6,  and   pt.  2,  §  116. 


PROCEEDINGS    PREVIOUS     TO     TRIAL.  1045 


CHAPTER  I. 


PROCEEDINGS    PREVIOUS    TO   TRIAL. 

PARAGRAPH 

I.  Inspection  of  documents  in  the  custody  or  under  the  control  of 

the  opposite  party 624 

At  common  law 624 

14  &  15  Vict.  c.  gg,  3.  6 624 

II.  Discovery,  &c.  of  documents  in  the  possession  or  power  of  the 

opposite  party        ...  .....  625 

III.  Inspection  of  real  or  personal  property  .....  625a 

IV.   Inspection  in  the  Court  of  Admiralty  .....  625b 

V.  Inspection  under  patent  law — 15  &  16  Vict.  c.  83,  s.  42        .         .  626 

VI.  Exhibiting  interrogatories  to  a  party  in  the  cause     .         .         .  627 

VII.  Admissions  before  trial 630 

624.  The  common  law  laid  down  as  a  maxim, 
"  Nemo  tenetur  armare  adversarium  suum  contra  se  ; " 
(a)  '  and,  in  furtherance  of  this  principle,  it  generally 
allowed  litigant  parties  to  conceal  from  each  other,  up 
to  the  time  of  trial,  the  evidence  on  which  they  meant 
to  rely,  and  would  not  compel  either  of  them  to 
supply  the  other  with  any  evidence,  parol,  or  other- 
wise, to  assist  him  in  the  conduct  of  his  cause,  (b) 
The    maxim,  at   least    when  pushed   to    this    extent, 

(a)  Co.  Litt.  36a  ;  Wing.  Max.  665.  (b)  See  per  Holt,  C.  J.,  3  Salk.  363. 

1  No  man  is  bound  to  arm  his  adversary  against  himself. 
And  see  also  the  maxims  :  Nemo  tenetur  divinare  (4  Co.  28) 
■ — No  one  is  bound  to  guess  or  fortell.  Nemo  tenetur  infor- 
mare  qui  nescit,  sed  quisquis  scire  quos  in  format  (Lane,  1  10) 
— No  one  is  bound  to  give  information  upon  a  subject  with 
which  he  is  unacquainted  :  but  every  one  who  does  give  in- 
formation is  bound  to  be  acquainted  with  his  subject.  Nemo 
tenetur  seipsum  infortunius  et  periculis  exponere  (Co.  Lit, 
253)— -No  one  is  bound  to  expose  himself  to  misfortune?  and 
dangers. 


1046  FORENSIC    PRACTICE. 

certainly  not  stamped  with  the  wisdom  which,  for  the 
most  part,  marks  the  common  law  ;  (c)  but  the 
defect  was  in  some  remedied,  by  the  power  which 
either  party  had,  of  filing  a  bill  in  equity  for  the 
discovery    of  evidence,1    a   process,     however,    which 

(c)  The  maxim  seems  to  have  been  "  Nemo  tenetur  edere  instrumenta 
derived  from  the  Roman  law  Cod.  lib.  contra  se."  Ilalk.  M.  ioo  ;  Ersk.  Inst. 
2,  tit.  I,   1.  4.     So   in  the  Scotch   law,      book  4,  tit.  I,  §  52. 

1  Chapter  VI.  of  the  New  York  Code  of  Procedure  (now 
adopted  in  many  of  the  states)  provides  that — 

§  389.  (Being  343  of  1848.)  No  action  to  obtain  discovery 
under  oath,  in  aid  of  the  prosecution  or  defense  of  another 
action,  shall  be  allowed,  nor  shall  any  examination  of  a  party 
be  had,  on  behalf  of  the  adverse  party,  except  in  the  manner 
prescribed  by  this  chapter.  See  as  to  construction  of  this  sec- 
tion, generally:  Williams  v.  People,  33  N.  Y.  688;  S.  C,  45 
Barb.  201;  as  to  husband  and  wife,  Wehrcamp  v.  Willett,  1 
Keyes,  250  ;  in  N.  Y.,  see  Laws  1867,  ch.  887. 

§  390.  A  party  to  an  action  may  be  examined  as  a  witness, 
at  the  instance  of  the  adverse  party,  or  of  any  one  of  several 
adverse  parties,  and  for  that  purpose  may  be  compelled, 
in  the  same  manner,  and  subject  to  the  same  rules  of  exam- 
ination, as  any  other  witness,  to  testify,  either  at  the  trial,  or 
conditionally,  or  upon  commission.  See,  as  to  parties, 
Forward  v.  Harris,  30  Barb.  379  ;  Woods  v.  DeFiganiere,  16 
Abb.  Pr.  1  ;  1  Rob.  607  ;  25  How.,  Pr.  522  ;  Roberts  v 
Gee,  15  Barb.  449 ;  Ravenburg  v.  Ravenburg.  47  Barb 
419.  Burnett  v.  Harris,  50  Id.  379,  does  not  abrogate  law  ad- 
mitting books  of  account  as  evidence  in  certain  cases;  Clark 
v.  Smith,  46  Barb.  30  ;  Tomlinson  v.  Borst,  30  Id.  42  ;  Stroud  v. 
Tilton,  3  Keyes,  139;  nor  the  lawmaking  parties  to  a  suit 
competent  witnesses,  Giberton  v.  Ginocho,  1  Hilt.  218;  Story 
v.  Louelt,  1  E.  D.  Smith,  153  ;  Jones  v.  Underwood,  28  Barb. 
481,  484;  King  v.  Smith,  21  Id.  158.  As  to  perpetuating 
evidence,  Paton  v.  Westervelt,  5  How.  Pr.  399.  But  see 
Keeler  v.  Dusenbury,  1  Duer,  660.  As  to  a  corporation  and 
its  books,  see  Goodyear  v.  Phoenix  Rubber  Co.,  48  Barb.  522  : 
but  see  Carr  v.  Great  Western  Insurance  Co.,  3  Daly,  160  ;  La- 
Farge  v.  LaFarge  Ins.  Co,  14  How.  26;  Woods  v.  Figaniere, 
16  Abb.  159.  As  to  the  subpoena,  Lane  v.  Cole,  12  Barb.  6S0; 
Hasbrock  v.  Baker,  10  Johns.  248;  Heermans  v.  Williams,  11 
Wend.    636;    Courtney   v.    Baker,    3    Den.    27;    Cogswell    v, 


PROCEEDINGS    PREVIOUS    TO     TRIAL.     1047 

was  alike  circuitous  and  expensive.  In  modem 
times  the  -courts  of  common  law  took  upon  them- 
selve,   to    relax    considerably   the    strictness    of   the 


Meech,  15  Wend.  147;  Bonesteel  v.  Lynde,  8  How.  Pr. 
226;  Garighe  v.  Gosche,  6  Abb.  284;  14  How.  453  ;  6  Duer, 
685;  Woods  v.  DeFiganiere,  16  Abb.  159;  1  Rob,  659;  Peo- 
ple v.  Dyckman,   24   How.   222;  Brett  v.   Bucknam,  32   Barb. 

655- 

§  391.  The  examination,  instead  of  being  had  at  the  trial  as 
provided  in  the  last  section,  may  be  had  at  any  time  before 
the  trial,  at  the  option  of  the  party  claiming  it,  before  a  judge 
of  the  court,  or  a  county  judge,  on  a  previous  notice  to  the 
party  to  be  examined,  and  any  other  adverse  party,  of  at  least 
five  days,  unless,  for  good  cause  shown,  the  judge  order  other- 
wise. But  the  party  to  be  examined  shall  not  be  compelled 
to  attend  in  any  other  county  than  that  of  his  residence, 
or  where  he  may  be  served  with  a  summons  for  his  attendance. 
Cook  v.  Bidwell,  29  How.  Pr.  483  ;  17  Abb.  Pr.  300;  Fullerton 
v.  Gaylord,  7  Rob.  552  ;  Green  v.  Wood,  15  How.  Pr.  338  ;  Duffy 
v.  Lynch,  $6  Id.  509  ;  Bell  v.  Richmond,  50  Barb.  571  ;  Norton 
v.  Abbott,  28  How.  Pr.  338  ;  Green  v.  Herder,  7  Rob.  455; 
VanRensselaer  v.  Tubbs,  31  How.  193;  Appleton  v.  Apple- 
ton,  50  Barb  4S6  ;  Plato  v.  Kell)*,  16  Abb.  Pr.  188  ;  People  v. 
Dyckman,  24  How.  223  ;  Taylor  v.  Jennings,  7  Rob.  581. 

§  392.  The  party  to  be  examined,  as  in  the  last  sec- 
tion provided,  may  be  compelled  to  attend  in  the  same 
manner  as  a  witness  who  is  to  be  examined  conditionally; 
and  the  examination  shall  be  taken  and  filed  by  the  judge  in 
like  manner,  and  may  be  read  by  either  party  on  the  trial. 
Barry  v.  Galvin,  37  How.  310;  Green  v.  Herder,  30  How.  Pr. 
2iq;  Draper  v.  Henningsen,  1  Bosw.  614;  Taggard  v.  Gard- 
ner, 2  Sand*.  669;  VanRensselaer  v.  Tubbs,  31  How.  Pr.  193; 
Ganghe  v.  Laroche,  14  Id.  451;  6  Abb.  Pr.  284;  and  see 
Leeds  v.  Brown,  5  Abb.  418;  see  as  to  fees,  Taggard  v.  Gard- 
ner, 2  Sandf.  669;  Draper  v.  Henningsen,  1  Bosw.  614;  Hew- 
lett v.  Brown,  1  Bosw.  665. 

§  393.  The  examination  of  the  party  thus  taken  may  be 
rebutted  by  adverse  testimony.  Boyd  v.  Colt,  20  How.  Pr. 
384;  Losee  v.  Morey,  57  Barb.  561  ;  Forward  v.  Harris,  30 
Barb.  338;  Pickard  v.  Collins,  23  Barb.  444;  Barry  v.  Galvin, 
37  How.  Pr.  310;  Parsons  v.  Suydam,  3  E.  D.  Smith,  276; 
Armstrong   v.   Clark,  2  Code  R.  143  ;   Muir   v.   Culy,    10   Up. 


1048  FORENSIC    PRACTICE. 

ancient  rule  ;  and  at  length  it  became  the  established 
practice,  that  when  a  document  in  which  both  litigant 
parties  had  a  joint  interest,  was  in  the  custody  or  con- 


Can.,  Q.  B.  321  ;  Bemis  v.  Kyle,  5  Abb.  Pr.,  N.  S.  232  ;  People 
v.  Skeehan,  49  Barb.  217. 

§  394.  If  a  party  refuse  to  attend  and  testify,  as  in  the 
last  four  sections  provided,  he  may  be  punished  as  for  a 
contempt,  and  his  complaint,  answer,  or  reply,  may  be 
stricken  out.  Woods  v.  De  Figaniere,  16  Abb.  Pr.  1  ;  25  How. 
Pr.  522  ;  Hewlett  v.  Brown,  1  Bosw.  655  ;  7  Abb.  Pr.  74;  Nor- 
ton v.  Abbott,  28  How.  Pr.  388.  As  to  waiving  or  excusing 
the  default,  see  Bennett  v.  Hall,  io*N.  Y.  Leg.  Obs.  191  ;  Sat- 
terlee  v.  De  Comeau,  7  Rob.  66 1  ;  Gardiner  v.  Peterson,  14 
How.  Pr.  513;  no  stay  of  proceedings ;  Appleton  v.  Appleton, 
50  Barb.  486. 

§  395.  A  party  examined  by  an  adverse  party,  as  in 
this  ciiapter  provided,  may  be  examined  on  his  own  behalf, 
subject  to  the  same  rules  of  examination  as  other  witnesses. 
But,  if  he  testify  to  any  new  matter,  not  responsive  to  the  in- 
quiries put  to  him  by  the  adverse  party,  or  necessary  to  ex- 
plain or  qualify  his  answers  thereto,  or  discharge  when  his 
answers  would  charge  himself,  such  adverse  party  may  offer 
himself  as  a  witness  on  his  own  behalf  in  respect  to  such  new 
matter,  subject  to  the  same  rules  of  examination  as  other  wit- 
nesses, and  shall  be  so  received.  (§  398  of  the  Code  provides 
that  "  no  person  offered  as  a  witness  in  any  action  or  proceed- 
ing in  any  court,  or  before  any  officer  acting  judicially,  shall 
be  excluded,  by  reason  of  his  interest  in  the  event  of  the  ac- 
tion or  proceeding,  or  because  he  is  a  party  thereto,  except  as 
provided  in  the  following  section.  See  N.  Y,J  Laws  of  1869, 
ch.  678.) 

§  399,  referred  to,  is  as  follows  :  No  party  to  any  action  or 
proceeding,  nor  any  person  interested  in  the  event  thereof, 
nor  any  person  from,  through,  or  under  whom  any  such  party 
or  interested  person  derives  any  interest  or  title,  by  assign- 
ment or  otherwise,  shall  be  examined  as  a  witness  in  regard 
to  any  personal  transaction  or  communication  between  such 
witness  and  a  person,  at  the  time  of  such  examination,  de- 
ceased, insane,  or  lunatic,  against  the  executor,  administrator, 
heir  at  law,  next  ot"  kin,  assignee,  legatee,  devisee,  or  survivor 
of  inch  deceased  person,  or  the  assignee  or  committee  ot  such 
insane    person   or   lunatic.      But  this  prohibition  shall  not  ex- 


PROCEEDINGS    PREVIOUS    TO     TRIAL.     1049 

trol  of  one  of  them,  under  such  circumstances  that  he 
might  fairly  be  deemed  a  trustee  of  it  for  both,  the 
court  would  order  an  inspection  and  copy  of  it  to  be 

tend  to  any  transaction  or  communication  as  to  which  any 
such  executor,  administrator,  heir  at  law,  next  of  kin,  assignee, 
legatee,  devisee,  survivor,  or  committee  shall  be  examined  on 
his  own  behalf,  or  as  to  which  the  testimony  of  such  deceased 
person  or  lunatic  shall  be  given  in  evidence.  See  authorities 
cited  in  Wait's  New  York  Annotated  Code  (1875),  pp.  746-757. 
§  396.  A  person  for  whose  immediate  benefit  the  action 
is  prosecuted  or  defended,  though  not  a  party  to  the  action, 
may  be  examined  as  a  witness,  in  the  same  manner,  and 
subject  to  the  same  rules  of  examination,  as  if  he  were  named 
as  a  party.     Jessop  v.  Wilier,  1  Keyes.  321. 

§  397.  A   party    may    be  examined    on    behalf  of  his   co- 
plaintiff  or  of  a  co-defendant,  as  to  any  matter  in  which  he  is 
not  jointly   interested   or  liable   with  such  co-plaintiff  or  co- 
defendant,  and  as  to  which  a  separate  and  not  joint  verdict  or 
judgment    can  be    rendered.       And  he  may  be  compelled  to 
attend  in  the  same  manner  as  at  the  instance  of  an  adverse 
party,  but  the  examination  thus  taken  shall  not  be  used  in  the 
behalf  of  the  party  examined.       And  whenever,  in  the  case 
mentioned  in  §§  390  and  391,   one  of  several   plaintiffs  or  de- 
fendants, who  are  joint  contractors,  or  are  united  in  interest, 
is  examined  bv  the  adverse  party,  the  other  of  such  plaintiffs 
or  defendants  may  offer  himself  as  a  witness  to  the  same  cause 
of  action  or  defense,  and  shall   be  so  received.     This  section 
"  has  no  force  or  application  in  any  possible  case  since  i860." 
Card  v.  Card,  39  N.  Y.  (12  Tiff.)  321,  322,  7  Trans.    App.   144. 
The   Code  elsewhere  provides  that  (§  388  [341,  342]  )   "  either 
party  may  exhibit  to  the  other,  or  to  his  attorney,  at  any  time 
before  the  trial,  any  paper  material  to  the  action,  and  request 
an   admission  in  writing  of  its  genuineness.     If  the  adverse 
party,  or  his  attorney,  fail  to  give  the  admission,   within  four 
days   after  the  request,  and  if  the  party  exhibiting  the   paper 
be  afterwards   put  to  expense  in  order  to   prove    its   genuine- 
ness, and  the  same  be  finally  proved  or  admitted  on   the  trial, 
such  expense,  to  be  ascertained  at  the  trial,  shall    be    paid    by 
the  party  refusing  the  admission,  unless  it  appear  to  the  satis- 
faction  of  the  court  that  there  were  good  reasons  for  »he  re- 
fusal.    The  court   before  which   an   action   is  pendino     or  a 
judge  or  justice   thereof,  may,  in  their  discretion,   and    upon 


1050  FORENSIC    PRACTICE. 

given  to  his  adversary,  if  it  were  material  to  his  suit 
or  defense,  (d) 

Even  this,  however,  fell  far  short  of  the  require- 
ments of  justice  ;  and  the  legislature  at  length  inter- 
fered,  and  by  the  14  &  15  Vict.  c.  99,  s.  6,  empowered 
the  superior  courts  of  common  law  and  each  of  the 
judges  thereof,  on  application  made  for  such  purpose, 
by  either  of  the  litigants  in  any  action,  or  other  legal 
proceeding  pending  in  any  of  the  said  courts,  to  com- 
pel the  opposite  party  to  allow  the  party  making  the 
application,  to  inspect  all  documents  in  the  custody  or 
under  the  control  of  such  opposite  party  relating  to 
such  action  or  other  legal  proceeding,  and,  if  necessary, 
to  take  examined  copies  of  the  same,  or  to  procure 
the  same  to  be  duly  stamped  ;  in  all  cases  in  which, 
previous  to  the  passing  of  that  act,  a  discovery  might 

(d)  Charnock    v.    Lumley,    5    Scott.  tan     Saloon    Omnibus    Company     v. 

438;  Steadman  v.  Arden,  15  M.  &  W.  Hawkins,  4   H.   &   N.   146;  Shaducll 

6S7  ;    Goodlift"  v.    Fuller,    14    Id.   4  ;  v.  Shadwell,  6  C.  B.,  N.  S.  679;  Price 

Smith  v.  Winter.   3    Id    309;  Dey  v.  v.  Harrison,  8  C.  B.,  N.  S.  617. 
Barlow,  1  Exch.  Soo ;  The  Metropoli- 

due  notice,  order  either  party  to  give  to  the  other,  within  a 
specified  time,  an  inspection  and  copy,  or  permission  to  take 
a  copy,  of  any  books,  papers,  and  documents  in  his  posses- 
sion, or  under  his  control,  containing  evidence  relating  to  the 
merits  of  the  action,  or  the  defense  therein.  If  compliance 
with  the  order  be  refused,  the  court,  on  motion,  may  exclude 
the  paper  from  being  given  in  evidence,  or  punish  the  party 
refusing,  or  both."  See  Brevoort  v.  Warner,  8  How.  Pr.  321  : 
Lefferts  v.  Brampton,  24  Id.  257  ;  Pindar  v.  Seaman,  33  Barb 
140  ;  Exchange  Bank  v.  Monteath,  4  How.  Pr.  280;  Gould  v. 
McCarty,  11  X.  Y.  575.  This  section  is  auxiliary  to,  and  not 
a  substitute  for,  the  N.  Y.  Statute,  12  R.  S.  199.  Morrison  7. 
Sturges,  26  How.  Pr.  177  ;  Follett  v.  Weed,  3  Id.  303  ;  Dole  v. 
Fellows  5  Id.  451  ;  Davis  v.  Durham,  33  Id.  425  ;  Pindar  v. 
Seaman,  ^t>  Barb.  140.  See  Rules  of  N.  Y.  Supreme  Court, 
18,  19,  20,  21,  22;  and  authorities  cited  in  Wait's  Annotated 
N.  Y.  Code  (1875),  S.  P.  735-733. 


PROCEEDINGS    PREVIOUS    TO     TRIAL.     1051 

have  been  obtained  by  filing  a  bill,  or  by  any  other 
proceeding  in  a  court  of  equity,  at  the  instance  of  the 
party  so  making  application  as  aforesaid  to  the  said 
court  or  judge.  And  in  the  construction  of  this  statute 
it  was  held,  first,  that  it  did  not  take  away  the  com- 
mon law  ;  so  that,  in  every  case  in  which  a  party  could 
have  obtained  inspection  before  the  statute,  he  might 
obtain  it  still,  without  reference  to  the  statute ;  {e) 
and,  secondly,  that  the  power  conferred  on  the  courts 
of  common  law  by  this  statute,  could  only  be  exer- 
cised in  cases  where  the  inspection  sought  for,  could 
be  obtained  by  a  bill  of  discovery,  or  other  proceeding 
in  a  court  of  equity ;  and  did  not  enable  them  to 
compel  a  party  to  discover  whether  certain  documents, 
or  whether  any  and  what  documents  relating  to  the 
cause,  were  in  his  possession  or  power.  (_/) 

625.  2.  This  defect  was  remedied  by  the  17  &  18 
Vict.  c.  125,  s.  50.  And  now,  by  the  "Supreme 
Court  of  Judicature  i\ct,  1873,"  (g)  the  court  or  a 
judge  may,  at  any  time  during  the  pendancy  of  any 
action  or  proceeding,  order  the  production  by  any 
party  thereto,  upon  oath,  of  such  of  the  documents 
in  his  possession  or  power,  relating  to  any  matter  in 
question  in  such  action  or  proceeding,  as  the  court  or 
judge  shall  think  right ;  and  the  court  may  deal  with 
such  documents,  when  produced,  in  such  manner  as 
shall  appear  just.  But  inspection  under  this  enact- 
ment will  be  granted, — as  it  was  under  the  17  &  18 
Vict.  c.  125,  s.  50, — only  when  it   is  applied  for  in  a 

(e)  Bluck  v.  Gompertz,  7  Exch.  67  ;  Rayner  v.  Allhusen,    2    L.,    M.  &    P 

Sneider   v.    Mangino,    7    Exch.    229  ;  605  ;  Galsworthy  v.  Norman,  21  L.  J 

Doe  d.  Child  v.  Roe,  1  E.  &  B.    279  ;  Q.  B.  70  ;  Scott  v.  Walker,  2  E.  &   B. 

Doe  d.  Avery  v.  Langford,  1   B.  C.  C.  555. 

37  ;  Shadwell  v.  Shadwell,  6  C.   N.  S.  {g)  36  &  37  Viet.  c.   66,    schcJ.,   rul 

679.  27.     And  see   Rules  of  Court,  under 

(/)  Hunt  v.  Hewitt,  7   Exch.   236.  that  act,  Order  23. 


1052  FORENSIC    PRACTICE. 

bona  fide  action ;  and  it  will  therefore  be  /efused 
when  the  court  sees  that  the  action  has  been 
brought,  not  to  obtain  redress  from  the  defendant, 
but,  by  means  of  an  application  for  inspection,  to 
get  at  evidence  to  be  used  in  other  proceedings 
against  a  third  party,  (/i)  So,  in  granting  in- 
spection under  this  enactment,  the  court  will 
refuse  every  application  which  is  merely  of  a  fish- 
ing nature,  (z)  But  it  will  be  no  answer  to  an  applica- 
tion thereunder,  that  the  documents  required  to  be  pro- 
duced are  such  as  the  party  is  privileged  from  produc- 
ing ;  for  if  such  be  the  fact,  it  may  be  shown  in  the  affi- 
davit to  be  made  in  obedience  to  the  rule  directing 
inspection.  (£) 

625A.  3.  Again,  by  the  17  &  18  Vict.  c.  125,  s.  58, 
the  court  or  a  judge  was  empowered  to  grant  to  either 
party  to  an  action,  a  rule  or  order  for  the  inspection 
by  the  jury,  or  by  himself,  or  by  his  witnesses,  of  any 
real  or  personal  property,  the  inspection  whereof 
might  be  material  to  the  proper  determination  of  the 
question  in  dispute.  And  it  was  held  that  this  section 
gave,  as  ancillary  to  the  power  to  order  inspection,  the 
same  power  to  order  the  removal  of  obstructions,  with 
a  view  to  inspection,  as  was  exercised  by  courts  of 
equity  in  like  cases.  (/) 

This  power  of  inspection  has,  as  we  have  seen,  been 
continued  and  extended  by  the  "  Supreme  Court  of 
Judicature  Act,  1873."  (;//) 

625  b.  4.  Similar  powers  to  those  mentioned  in  the 
17  &  18  Vict.  c.  125,  ss.  50,  58,  were  conferred  on  the 
Court  of  Admiralty,  by  the  24  Vict.  c.  10,  ss.  17  and  18. 

(//)  See  Temperley  v.  Willett,  6  E.  N.  S.  679. 
&  B.  380  {k)  Forshaw  v.  Lewis,  10  Exch.  712. 

U)  See  (1   mm  v.  Parrott,  3  C.  B.,  X.  1  )  Bennett  v.  Griffiths,  3    E.   &   E. 

S.    |7  ;   \\  right    v.    Murrey,    n    Exch.  4'':. 
209  ;  Shadwell   v.  Shadwell,  6   C.    I!.,  (/«)  Sclied.,  rule  .15,  supra,  £  iq7. 


PROCEEDINGS  PREVIOUS    TO    TRIAL.     1053 

626.  5.  By  the  Patent  Law  Amendment  Act,  15 
&  16  Vict.  c.  83,  s.  42,  it  was  enacted,  that  "  in  any 
action  in  any  of  her  Majesty's  superior  courts  of 
record  for  the  infringement  of  letters  patent,  it  should 
be  lawful  for  the  court  in  which  such  action  was  pend- 
ing, if  the  court  were  then  sitting,  or  if  the  court  were 
not  sitting,  then  for  a  judge  of  such  court,  on  the 
application  of  the  plaintiff  or  defendant  respectively, 
to  make  such  order  for  an  injunction,  inspection,  or 
account,  and  to  give  such  direction  respecting  such 
action,  injunction,  inspection,  and  account,  and  the 
proceedings  therein  respectively,  as  to  such  court  or 
judge  might  seem  fit."  But  the  "  inspection "  au- 
thorized by  this  section,  was  an  inspection  of  the 
instrument  or  machinery  manufactured  or  used  by  the 
parties,  with  a  view  to  procuring  evidence  of  infringe- 
ment. («)  And  it  was  made  a  question  whether  the 
power  of  the  court  to  grant  such  inspection,  was 
limited  to  granting  an  external  inspection  only,  or 
enabled  it  also  to  order  a  portion  of  the  inspected 
article  to  be  given  up  for  analysis.  (0)  This  latter 
power  has  now,  as  we  have  seen,  been  expressly  given 
by  the  "  Supreme  Court  of  Judicature  Act,  1873."  GO 

627.  6.  And,  in  providing  for  the  compulsory 
discovery  of  evidence  from  litigant  parties  before  trial, 
the  17  &  18  Vict.  c.  125,  not  only  supplied  deficiencies 
in  the  14  &  15  Vict.  c.  99,  but  introduced  an  entirely 
new  machinery  into  the  common-law  system  of  evi- 
dence and  forensic  procedure,  by  authorizing  either 
party  to  a  cause  in  any  of  the  superior  courts — sub- 
ject to  the  provisions  in  that  behalf  contained  in  tha 
statute — {q)  to  deliver  to  the  other,  interrogatories  in 

(«)  Vidi  v.  Smith,  3    E.  &  B.   969,      Company  v.  Lloyd,  5  IT.  &  N.  192. 
974-  (/)  Sched.,  rule  45,  supra,  §  197. 

(0)  The     Patent     Type     Founding  (4O  See  sects.  51-57. 


io54  FORENSIC    PRACTICE. 

writing  upon  any  matter  as  to  which  discovery  might 
be  sought. 

And  now,  by  the  "  Supreme  Court  of  Judicature 
Act,  1873,"  (r)  "subject  to  any  rules  of  court,  a  plain- 
tiff in  any  action  shall  be  entitled  to  exhibit  interroga- 
tories to,  and  obtain  discovery  from  any  defendant, 
and  any  defendant  shall  be  entitled  to  exhibit  interro- 
gatories to  and  obtain  discovery  from  a  plaintiff  or  any 
other  party." 

628.  In  carrying  out  these  provisions,  the  courts 
will  hold  a  tight  hand  ;  as  otherwise  it  might  be  made 
a  mere  matter  of  course  to  deliver  interrogatories  in 
every  case,  thus  needlessly  adding  to  the  expense  of 
legal  proceedings,  (s)  And  there  are  several  decisions 
to  show  that,  in  allowing  interrogatories,  the  court  will 
adhere  to  the  established  principles  of  evidence.  Thus, 
interrogatories  must  be  put  within  a  reasonable  range, 
(i)  and  must  not  be  made  the  means  of  evading  the 
rule  which  requires  the  production  of  primary  evi- 
dence. («)  So  the  party  to  whom  they  are  adminis- 
tered possesses  the  privilege  of  other  witnesses ;  (x) 
and  consequently  he  will  not  be  compelled  to  state 
the  contents  of,  or  to  describe  documents  which  are 
his  muniments  of  title  ;  (y)  nor,  except  under  special 
circumstances,  to  answer  questions  tending  to  crimi- 
nate him,  or  expose  him  to    penalty  or  forfeiture,  (z) 


(r)  36  &  37  Vict.    c.  66,   sched.,  rule  (/)  Robson  v.   Crawley,  2   H.   &  N. 

25.     And  see    Rules   of  Court,  under  766. 
that  act,  Order  28.  («)  Herscnfeld  v.   Clarke,  11  Exch. 

(s)  This  is  expressly  provided  712  ;  Moor  v.  Roberts,  2  C.  B.,  N.  S. 
against,  by  the  "Supreme  Court  of  671;  Wolverhampton  Railway  Corn- 
Judicature  Act.  1873,"  sched.,  rule  25.  pany  v.  Hawksford,  5  C  B.,  N.  S.  703. 
And  see  Martin  v.  Hemming,  10  Exch.  (x)  Bk.  2,  pt.  I.  ch.  I,  §  126,  et  scq. 
478.  484,  per  Parke,  B.  ;  Smith  v.  The  (y)  Adams  v.  Lloyd,  3  H.  &  N.  351. 
Great  Western  Railway  Company,  2  (z)  See  Tripling  v.  Ward,  6  II.  &  N. 
Jurist  N.  S.  66S,  669,  per  Lord  Camp-  749  ;  Edmunds  v.  Greenwood,  L.  Rep., 
bell.  4  C  P.  70;  Viileb^Lnet  v.  Tobin,  Id. 


PROCEEDINGS  PREVIOUS    TO    TRIAL.     1055 

And,  lastly,  the  courts  will  only  allow  interrogatories, 
the  object  of  which  is  to  obtain  evidence  to  support 
the  case  of  the  party  exhibiting  them ;  and  will  refuse 
such  as  are  merely  fishing,  or  directed  to  finding  out 
the  case  of  the  opposite  party,  (a) 

629.  Before  dismissing  this  subject,  we  would  re- 
mark that  the  20  &  21  Vict.  c.  85 — which  establishes 
the  court  for  Divorce  and  Matrimonial  Causes,  and 
directs  that  (5)  the  rules  of  evidence  observed  in 
the  superior  courts  of  common  law  at  Westminister, 
shall  be  applicable  to,  and  observed  in  the  trial  of  all 
questions  of  fact  in  that  court — contains  provisions 
for  the  interrogation  of  the  parties  to  the  suit  in  cer- 
tain cases,  (c) 

630.  7.  The  expense  of  proving  documents  which 
are  formal  in  their  nature,  and  not  likely  to  be  made 
the  subject  of  dispute,  was  long  felt  to  be  a  grievance. 
For  remedy  whereof,  certain  provisions  were  inserted 
in  the  Regulas  Generales,  of  Hilary  Term,  4  Will.  4,  (d) 
and  afterwards  in  the  15  &  16  Vic.  c.  76,  s.  117.  And 
now,  by  the  "  Supreme  Court  of  Judicature  Act, 
1873,"  (Y)  either  party  may  call  on  the  other  party  to 
admit  any  document,  saving  all  just  exceptions ;  and 
in  case  of  refusal  or  neglect  to  admit  after  such  notice 
the  costs  of  proving  any  such  document  shall  be  paid 
by  the  party  so  neglecting  or  refusing,  whatever  the 
result  of  the  action  may  be,  unless  at  the  hearing  or 
trial,  the    court  certify  that  the  refusal  to  admit  was 

184  ;  Atkinson  v.  Fosbroke,  L.  Rep.,  B.,  N.  S.  671  ;  Pye  v.  Butterfield,  5  B 

1    Q.   B.   628;    May    v.    Hawkins,    II  &  S.  829. 
Exch.  210.  (/')  Sect.  48. 

(a)  Thol.  v.    Leask,    10   Exch.    704  ;  (<-)  Sects.  43,  46. 

Horton  v.  Bott,  2   H.  &  N.  249  ;  Ric-  (d)  See  rule  20:  "  Practice  " 

card  v.  The  Inclosure  Commissioners,  (e)  36  &  37  Vict.  c.   05,   sched.,  rule 

4  E.  &  B.    329  ;  Whateley  v.  Crowter,  39-     And  see    Rules   of  Court,  under 

5  E.  &  B.  709  ;  Edwards  v.  Wakefield,  that  act,  Order  29. 

6  E.  &  B.  462  ;  Moor  v.  Roberts,  2  C. 


1056  FORENSIC    PRACTICE. 

reasonable  ;  and  no  costs  of  proving  any  document 
shall  be  allowed  unless  such  notice  be  given,  except 
where  the  omission  to  give  the  notice  is,  in  the  opinion 
of  the  taxing  officer,  a  saving  of  expense. 

And,  by  the  same  rule,  any  party  to  an  action  may 
give  notice,  by  his  own  statement  or   otherwise,  that 
he  admits  the   truth  of  the  whole,  or  any  part  of  the 
case  stated  or   referred  to  in  the  statement  of  claim 
defense,  or  reply  of  any  other  party 


TRIAL    AND    ITS    INCIDENTS. 


105; 


CHAPTER  II. 


TRIAL    AND     ITS    INCIDENTS. 


PARAGRAPH 

1    Course  of  a  trial           ..., 631 

17  &  18  Vict.  c.  125,  s.  18 631 

28  &  29  Vict.  c.  18,  s.  2 631 

Counsel  in  criminal  cases      ........  632 

Ancient  practice         .                   6^2 

Alterations  in  more  recent  times 633 

7  &  8  Will.  3,  c.  3 633 

20  Geo.  2,  c.  30 633 

39  &  40  Geo.  3,  c.  93 633 

5  &  6  Vict.  c.  51,  s.  1 633 

Modern  practice  in  felony            ......  634 

6  &  5  Will.  4,  c.  114 634 

II.  Principal  incidents  of  a  trial 636 

1.  Ordering  witnesses  out  of  court 636 

2.  Order  of  beginning,  or  right  to  begin        .....  637 

Erroneous  ruling  relative  to,  when  rectified       .         .         .  638 

Advantage  and  disadvantage  of  having  to  begin    .         .         .  639 

3.  Rule  against  stating  facts  without  offering  evidence  of   them  640 

Matters  of  history 640 

4.  Practice  respecting  "  Leading  questions "         .         .         .         .  641 

General  rule 641 

Exceptions     ..........  642 

Expediency  of  leading,  when  allowable       ....  643 

5.  Discrediting  the  adversary's  witnesses 644 

1.  Evidence  of  general  bad  character  for  veracity       .         .  644 

2.  Statements  by  witness  inconsistent  with  his  evidence       „  644 

17  &  18  Vict.  c.  125,  ss.  23,  103 644 

28  Vict.  c.  18,  ss.  4,  1 ,  644 

3.  Misconduct  connected  with  the  proceedings           .         .  644 

6.  Discrediting  party's  own  witnesses 645 

1.  At  common  law     .                   645 

2.  17  &  18  Vict.  c.  125,  ss.  22,  103 645 

Meaning  of  "adverse  "  in  this  enactment  .         .         .  645 

28  Vict.  c.  i8,  ss.  3,  1 645 

7.  Adjournment  of  trial 646 

17  &  18  Vict.  c.  125,  ss.  19,  103 646 

8.  Ways  of  questioning  the  ruling  of  a  tribunal  on  evidence    .  647 
I.   In  civil  cases         ......                   .         .  647 

67 


io58  FORENSIC    PRACTICE. 

PARAGRAPH 

j.  Bill  of  exceptions 647 

2.  New  trial .  647 

2.   Jn  criminal  cases .  648 

11  &  12  Vict.  c.  73 .  648 

631.  I.  Having,  in  the  first  Book,  explained  the 
nature  of  our  common-law  tribunal  for  the  trial  of 
facts,  and  the  respective  functions  of  judge  and  jury 
{a)  the  course  of  a  trial  is  soon  described.  The  pro- 
ceedings commence  with  a  short  statement  to  the  jury 
of  the  questions  they  are  about  to  try.  In  civil  cases 
this  statement  is  made  by  the  plaintiff,  if  he  appears 
in  person  ;  by  his  counsel,  if  he  appears  by  counsel  ; 
and  by  his  junior  counsel  if  he  has  more  than  one  ; 
and  it  is  technically  termed  "  opening  the  pleadings " 
In  criminal  cases  a  summary  of  the  charge  against  the 
accused,  together  with  his  plea  thereto,  and  the  issue 
ioined,  is  stated  to  the  jury  by  the  officer  of  the  court, 
and  in  some  cases  (6)  by  the  counsel  for  the  prosecu- 
tion. If  there  be  any  question  as  to  which  of  the 
contending  parties  ought  to  begin,  the  judge  decides 
that  question,  and  the  party  who  has  that  right  then, 
either  by  himself  or  his  counsel,  states  his  case  to  the 
jury,  and  afterwards  adduces  his  evidence  in  support  of 
it.  In  criminal  cases,  where  no  counsel  is  employed 
for  the  prosecution,  the  prosecutor  can  not  address 
the  jury,  and  the  evidence  is  gone  into  at  once  ;  for  in 
contemplation  of  law  the  suit  is  that  of  the  sovereign. 
(V)  The  opposite  party  is  then  heard  in  like  order. 
If  he  adduces  evidence,  the  opener  has  a  right  to 
address  the  jury  in  reply;  but  in  prosecutions  where 
the  Attorney-General  appears  officially,  and  in  pro- 
ceedings in  the  Exchequer  for  penalties,  he,  or  his 
epresentative,  has  a  right  to  reply  whether  evidence 

(a)  Bk.  r,  pt.  21.  §  82,  et  seq.  (c)  Bk.  2,  pt.  i,  ch.  2,  §§  169,  183. 

(6)  I  e.,\\\  misdemeanors. 


TRIAL     AND     ITS    INCIDENTS.  1059 

is   adduced    or  not.  (d)       In    addressing   the  jury,  a 
party  has  no   right  to    state   facts  which   he   does   not 
intend  to  call   evidence  to  prove  ;  (e)  and  when  this 
rule  is  violated  the  judge  may,  in  his  discretion,  allow 
a   reply.  {/)     Where    a  fresh    case,  i.  e.,  a  case    not 
merely  answering  the  case  of  the  party  who  began,  is 
set  up  by  the    responding  party,  and  evidence  is  ad- 
duced to  support  such  fresh  case,  the  party  who  began 
may  give  proof  of  a  rebutting  case  ;  his  adversary   has 
then  a  special  reply  on  the  new  evidence  thus  adduced, 
and  the  opener  has  a  general  reply  on  the  whole  case. 
By  17  &  18  Vict,  c.  125,  s.  18,  "  Upon  the  trial  of  any 
cause  the  addresses  to  the  jury  shall    be  regulated  as 
follows:  The  party  who  begins,  or  his  counsel, shall  be 
allowed,  in  the  event  of  his  opponent  not  announcing 
at  the  close  of  the  case  of  the    party  who  begins,  his 
intention    to  adduce  evidence,  to  address    the  jury  a 
second  time  at  the  close  of  such  case,  for  the  purpose 
of  summing    up  the  evidence  ;  and  the   party  on  the 
other  side,  or  his  counsel,  shall  be  allowed  to  open  the 
case,  and   also  to  sum  up  the    evidence  (if  any)  ;  and 
the  right  to  reply  shall  be  the    same  as  at    present : " 
and    28  &  29  Vict.  c.   18,  s.  2,  enacts   that,  "If  any 
prisoner  or  prisoners,  defendant  or  defendants,  shall  be 
defended  by  counsel,  but  not  otherwise,  it  shall  be  the 
duty  of  the  presiding  judge,  at  the  close  of  the  case 
for  the    prosecution,    to    ask    the    counsel,    for    each 
prisoner  or  defendant  so  defended  by  counsel,  whether 
he  or  they  intend  to  adduce  evidence,  and  in  the  event 
of  none    of   them  thereupon    announcing    his  inten- 
tion to  adduce  evidence,  the  counsel  for   the  prosecu- 

(d)  Resolutions  of  the  judges,  7  C.  (e)  Bk.  1,  pt.  1,  §  94,  and  infra. 

\  P.  676,  Res.  5  ;  R.  v.  Home,  20  Ho.  (/)  Crerar  v.   Sodo,  I    Mood.  &   M. 

St.  Tr.  O60-664;  R.  v.  Radcliffe,  1  W.  85  ;  Faith  v.  M'Intyre,  7  C.  &  P.  44. 

Bl.  3  ;  R.  v.  Marsden,  1    Mood.  &  M.  The  notion  that  this   may  be  claimed 

439  as  a  right  can  not  be  supported. 


io6o  FOREXSIC    PRACTICE. 

tion  shall  be  allowed  to  address  the  jury  a  second 
time,  in  support  of  his  case,  for  the  purpose  of  sum- 
ming up  the  evidence  against  such  prisoner  or  prison- 
ers, or  defendant  or  defendants ;  and  upon  every 
trial  for  felony  or  misdemeanor,  whether  the  prisoners 
or  defendants,  or  any  of  them,  shall  be  defended  by 
counsel  or  not,  each  and  every  such  prisoner  or  defend- 
ant, or  his  or  their  counsel  respectively,  shall  be 
allowed,  if  he  or  they  shall  think  fit,  to  open  his  or 
their  case  or  cases  respectively  ;  and  after  the  conclu- 
sion of  such  opening,  or  of  all  such  openings,  if  more 
than  one,  such  prisoner  or  prisoners,  or  defendant  or  de- 
fendants, or  their  counsel,  shall  be  entitled  to  examine 
such  witnesses  as  he  or  they  may  think  fit,  and  when  all 
the  evidence  isconcluded,  to  sum  up  the  evidence  respec- 
tively ;  and  the  right  of  reply,  and  practice  and  course 
of  proceedings,  save  as  hereby  altered,  shall  be  as  at 
present."  The  party  against  whom  real  or  documentary 
evidence  is  adduced,  has  a  right  to  inspect  it ;  and  such 
evidence  can  be  read  to,  or  laid  before  the  jury,  only  if 
no  valid  objection  to  it  appears.  Every  witness  called 
is  first  examined  by  the  party  calling  him,  and  this  is  de- 
nominated his  "  examination-in-chief."  If  an  objection 
is  made  to  his  competency,  he  is  interrogated  as  to  the 
necessary  facts,  and  this  is  called  examination  on  the 
voir  dire,  (g)  The  party  against  whom  any  witness  is 
examined  has  a  right  to  "  cross-examine"  him  :  after 
which  the  party  by  whom  he  is  called  may  "  re-examine" 
him,  but  only  as  to  matters  arising  out  of  the  cross- 
examination.  The  court  and  jury  may  also  put  ques- 
tions to  the  witnesses,  and  inspect  all  media  of  proof 
adduced  by  either  side.  The  court, generally  speaking, 
is  not  only  not  bound  by  the  rules  of  practice  relative  to 
the  manner  of  questioning  witnesses,  and  the  order  of 

(g)  Bk.  2,  pt.    i.  ch.    2,  §   133,   and   Bk.  2,  pt.  2,  ch.  3,  g  4qo. 


TRIAL    AND    ITS    INCIDENTS.  1061 

receiving  proofs,  but  may  in  its  discretion  dispense 
with  them  in  favor  of  parties  or  counsel.  During  the 
whole  course  of  the  trial,  the  judge  determines  all 
questions  of  law  and  practice  which  arise;  and  if  the 
admissibility  of  a  piece  of  evidence  depends  on  any 
disputed  fact,  the  judge  must  determine  that  fact,  and 
for  this  purpose  go  into  proofs,  if  necessary.  (//) 

632.  The  common-law  right  of  a  party  to  appear 
by  counsel,  when  that  right  is  accorded  to  the  other 
side,  was  long  subject  to  a  remarkable  exception,  i.  e. 
in  cases  of  persons  indicted  or  impeached  for  treason 
or  felony.  It  was  otherwise  in  prosecutions  for  mis- 
demeanor; (7)  as  also  in  appeals  of  felony:  (/)  and 
even  on  indictments  or  impeachments  for  treason  or 
felony,  the  exception  was  confined  to  cases  where  the 
accused  pleaded  the  general  issue,  and  did  not  extend 
to  preliminary  or  collateral  matters ;  such  as  pleas  to 
the  jurisdiction,  (k)  pleas  of  sanctuary,  (/)  or  of 
autrefois  acquit,  {in)  the  trial  of  error  in  fact  to  reverse 
outlawry,  (11)  issues  on  identity  when  brought  up  to 
receive  judgment,  (<?)  &c.  And  even  on  the  trial  of 
the  general  issue,  if  a  point  of  law  arose  which  the 
court  considered  doubtful,  they  assigned  the  accused 
counsel  to  argue  it  on  his  behalf,  (p)  For  the  refusal 
of  counsel  to  accused  persons  in  these  cases,  the  most 
serious  and  important  which  can  come  before  a  court 
of  justice,  several  reasons  are  assigned  in  our  old 
books.     1.  That  in  criminal    proceedings  at  the  suit 


(/i)  Bk.  1,  pt.  1,  §  82.  (w)  41  Ass.  pi.  9. 

(/)  6  Ho.  St.  Tr.  797.  (")  Burgesses'  case,  Cro.  Car.  365. 

(/')  Dr.  &  Stud.    Dial.  2,  ch.  4S  ;  9  (0)  Ratcliffe's   case,   Fost.   Cr.    Law 

Edw.  IV.   2   A,   pi.  4  ;  8    Ho.   St.    Tr.  40;   iS  Ilo.  St.  Tr.  434. 
726  ;  Staundf.  PL  Cor.  lib.  2,  c.  63.  (/>)  9  Edw.  IV.  2   A,  pi.   4  ;   1   Hen 

{/i)  n  llo.  St.  Tr.  523-526.  VII.  26  A.  ;  Staundf.    PL   Cor.   lib.  a, 

(/)  llamphreyStaffoid'.-.ca^e,  1  Hen.  c.  63  ;  2  Hawk.  1'.  C.  401. 
VII.  26  A. 


io62  FORENSIC    PRACTICE. 

of  the  crown,  the  accused  does  not  need  tl  !  protec- 
tion of  counsel,  seeing  that  it  can  not  be  mtended 
that  the  crown  is  actuated  by  malice  igan.st  him  ; 
whereas  in  appeals,  great  malice  on  the  part  of  the 
appellant  must  be  intended,  and  consequently  counsel 
ought  to  be  allowed  to  the  accused,  (y)  But  although 
it  is  perfectly  true  that  no  malice  against  the  accused 
can  be  intended  in  the  crown,  it  is  going  a  great  way 
to  extend  so  strong  a  presumption  to  its  officers  ;  who 
might  also,  even  without  any  evil  intention,  and 
through  mere  error  in  judgment,  pervert  both  its  im- 
mense prerogatives  and  their  own  abilities  and  \  gal 
acquirements,  to  procuring  the  condemnation  of  inno- 
cent persons.  Besides,  the  argument  proves  too  much  ; 
for,  if  sound,  the  rule  ought  to  have  extended  to  cases 
of  misdemeanor.  2.  That  trial  of  the  general  issue  is 
a  trial  not  of  matter  of  law,  but  of  matter  of  fact,  the 
truth  of  which  must  be  better  known  to  the  accused 
than  to  his  counsel :  (r)  an  argument  which  also  man- 
ifestly proves  too  much — for  if  worth  anything  it  is 
applicable  to  every  cause,  civil  and  criminal,  unless 
where  a  point  of  law  is  expressly  raised  by  demurrer, 
or  other  proceeding  where  the  facts  are  taken  for 
granted.  3.  That  the  accused  ought  not  to  be  con- 
victed unless  his  guilt  is  so  manifest  that  defense  by 
any  counsel,  however  able,  would  be  hopeless.  (V) 
One  would  naturally  suppose  that  a  defense  which 
is  hopeless  must  be  harmless  to  the  opposite  side. 
4.  That  if  counsel  were  allowed  in  such  cases  they 
would  raise  trivial  objections,  and  so  the  proceed- 
ings go  on  ad  infinitum  :  (/)  an  argument  at  direct 
variance  with  the  ancient  maxim  of  law,  "  De  morte 

(q)  Dr   &  Stud.  Dial.  2,  ch.  4S.  (s)  3  Inst.  29  and  137. 

(,•-)  Ptaundf.  PI.  Cur.  lib.   2,  c.   63  ;  (/)  n  Ho.  St.  Tr.  525  ;  Staundf.  PL 

Finch    Law,  386.  Cor.  lib.  2,  c.  63. 


TRIAL    AND    ITS    INCIDENTS  1063 

hominis  nulla  est  cunctatio  longa."  (11)  The  best 
answer  to  it,  however,  is,  that  since  counsel  have  been 
allowed  in  treason  and  felony  no  such  consequence  has 
followed.  5.  That  counsel  are  unnecssary,  it  being 
the  duty  of  the  court  to  be  counsel  for  the  pris- 
oner: (v)  a  wretched  misapplication  of  a  noble  con- 
stitutional maxim,  namely,  that  if  an  accused  person 
has  no  counsel,  it  is  the  duty  of  the  court  to  see  that 
-he  does  not  suffer  for  want  of  counsel :  i.  e.,  to  give 
him  the  benefit  of  any  point  of  law  in  his  favor, 
though  through  ignorance  he  can  not  himself  take 
advantage  of  it  ;  to  see  that  he  is  not  oppressed  by 
the  legal  ingenuity  of  the  opposing  advocates  ;  and 
generally  to  secure  him  a  fair  trial,  (x)  But  it  is  not 
possible,  and  would  be  indecorous  if  it  were,  for  the 
court  to  act  as  counsel  in  the  ordinary  sense  of  the 
term,  for  an  accused  or  any  other  party — in  other 
words,  to  combine  the  incompatible  functions  of  judge 
and  advocate.  Besides,  although  counsel  were  always 
allowed  in  cases  of  misdemeanor,  we  are  not  aware 
that  when  a  person  accused  of  a  misdemeanor  is  un- 
defended by  counsel,  the  court  is  exonerated  from  the 
duty  of  seeing  that  he  is  convicted  according  to  law. 
6.  That  if  the  party  defends  himself,  his  conscience 
will  perhaps  sting  him  to  utter  the  truth,  or  at  least 
his  gesture  or  countenance  show  some  signs  of  it  ;  and 
if  they  do  not,  still  his  speech  may  be  so  simple,  that 
the  truth  shall  be  thereby  discovered  sooner  than  by 
the  artificial  speech  of  learned  men.  (y)  When  a 
nrisoner's  conscience  stings  him  to  utter  the  truth,  the 


(w)  Co.  Litt.  134b.  oner's  counsel,  see  5  Ho.  St.  Tr.  466, 

(v)  3  Inst.  29  and  137  ;  Dr.  &  Stud.  note  ;  6  Id.  516,  note. 

Dial.  2,  ch.  48.  0')  Staundf.  PI.  Cor.  lib.  2,  c.  63  1 

(x)  That  this  is  the  true  meaning  of  Finch,  Law,  386  ;  2  Hawk.  P.  C  40a 

the  maxim,  that  the  judge  is  the  pris- 


1064  FORENSIC    PRACTICE. 

natural  course  for  him  is  to  plead  guilty,  and  not 
reserve  the  disburdening  of  it  for  the  jury  ;  and,  for 
one  man  who  in  a  case  of  anything  like  difficulty,  has 
sufficient  sense  and  nerve  to  defend  himself  with 
clearness  and  effect,  twenty  would  injure  even  a  good 
cause  by  their  ignorance  and  confusion. 

633.  It  is  not  worth  while  to  discuss  the  origin  of 
this  practice  -whether  it  formed  part  of  the  ancient 
common  law,  or  like  many  other  abuser,  crept  in 
gradually,  (z)  We  certainly  find  the  practice  clearly 
stated  as  above,  so  early  as  the  reign  of  Edward  the 
Fourth  ;  (a)  and  from  thence  down  to  the  alteration 
of  the  law  after  the  Revolution  of  1688,  the  prayer  of 
the  prisoner  to  be  allowed  to  be  defended  by  counsel, 
and  the  refusal  of  it  by  the  court,  formed  the  regular 
prologue  to  a  state  trial,  (b)  At  that  period  a  heavy 
blow  was  aimed  at  the  established*  practice,  by  the 
statute,  7  &  8  Will.  3,  c.  3,  which  after  reciting  that 
"  nothing  is  more  just  and  reasonable,  than  that  persons 
prosecuted  for  high  treason  and  misprision  of  treason, 
whereby  the  liberties,  lives,  honor,  estates,  blood,  and 
posterity  of  the  subjects,  may  be  lost  and  destroyed, 
should  be  justly  and  equally  tried,  and  that  persons 
accused  as  offenders  therein,  should  not  be  debarred 
of  all  just  and  equal  means  for  defense  of  their  inno- 
cencies  in  such  cases  ; "  enacts  that  every  person  so 
accused  and  indicted,  arraigned,  or  tried  for  any  trea 
son,  whereby  any  corruption  of  blood  may  ensue,  &c, 
or  misprision  of  such  treason,  shall  be  received  and 
admitted  to  make  their  full  defense  by  counsel  learned 
in  the  law.     A  like  law  was  extended  to  parliamentary 

(2)  Vide  Mirror  of  Justices,  chap.  3,      per  Gascoigne,  C.  J.,  7  Hen.   IV.  53b, 
»ect.  1  ;  and  Dr.  &  Stud.  Dial.   2,  ch.      pi.  4. 
48.  (b)  See    the     State    Trials    passim. 

(a)  9    Edw.    IV.  2,  pi.   4.     See   also      Several  of  these  cases  are  collected,  5 

Ho.  St.  Tr.  400  et  seq.  (note). 


TRIAL    AND    ITS    INCIDENTS.  1005 

impeachments  by  20  Geo.  2,  c.  30.  And  by  39  &  40 
Geo  3,  c.  93,  and  5  &  6  Vict.  c.  51,  s.  i,  treasons, 
where  the  overt  act  charged  is  the  actual  assassination 
of  the  sovereign,  or  other  offense  against  his  person, 
are  to  be  tried  in  every  respect  as  if  the  accused  stood 
charged  with  murder. 

634.  Although  the  7  &  8  Will.  3,  c.  3,  did  not 
extend  to  cases  of  felony,  yet  a  practice  gradually  grew 
up  during  the  last  century,  which  continued  until  the 
reign  of  William  the  Fourth  ;  by  which  the  counsel 
for  a  prisoner  were  allowed  to  advise  him  during  his 
t>ial ;  to  take  points  of  law  in  his  favor ;  to  examine 
and  cross-examine  witnesses  on  his  behalf;  and,  in 
short,  to  do  everything  except  address  the  jury  in  his 
defense.  But  by  the  6  &  7  Will.  4,  c.  114,  the  whole 
anomaly  was  removed.  That  statute,  after  reciting 
that  "it  is  just  and  reasonable  that  persons  accused  of 
offenses  against  the  law,  should  be  enabled  to  make 
their  full  answer  and  defense  to  all  that  is  alleged 
against  them,"  enacts  in  its  first  section,  that"  all  per- 
sons tried  for  felonies  shall  be  admitted,  after  the  close 
of  the  case  for  the  prosecution,  to  make  full  answei 
and  defense  thereto,  by  counsel  learned  in  the  law,  or  by 
attorney  in  courts  where  attorneys  practice  as  counsel." 

635.  In  construing  this  statute  several  judges 
ruled  that,  when  an  accused  person  defends  himself  he 
may  state  in  his  defense  what  facts  he  thinks  proper 
and  although  he  adduces  no  evidence  to  proire  them, 
the  jury  may  weigh  the  credit  due  to  his  statement  ; 
but  that  counsel  who  defend  prisoners  are  bound  by 
the  rule  of  practice  in  civil  cases,  viz.,  only  to  state 
such  facts,  as  they  believe  they  are  in  a  condition  to 
establish  by  evidence,  (Y)     According  to  this  dogma, 

(<■)  R.  v.  Beard,  8  C.  &   F     142  ;  R.      v.  Butcher,  2    ML  &    Rob.   229  ;  R.   v 

Burrows,  Id.  124. 


io66  FORENSIC    EVIDENCE. 

when  a  prisoner's  defense  rests,  as  it  often  necessarily 
must  rest,  on  an  explanation  of  apparently  criminating 
circumstances,  his  employing  counsel  causes  his 
defense  to  be  suppressed — a  state  of  things  hardly 
contemplated  by  the  framers  of  the  statute,  and  cer- 
tainly at  variance  with  the  principles  of  natural  justice. 
It  is  sought  to  defend  this  anomalous  proceeding  on 
the  ground  that  the  counsel  for  the  accused  may  put 
his  client's  defense  before  the  jury  in  a  hypothetical 
form  : — but  how  feebly  does  this  tell  in  comparison 
with  a  straightforward  explanation !  Some  judges 
have  sought  to  qualify  the  rule,  by  allowing  the 
accused  to  make  a  statement  of  the  facts  he  deems 
essential,  leaving  it  to  be  commented  on  by  his  coun- 
sel ;  but  this  course  has  not  been  followed  by  other 
judges,  and  the  practice  on  the  subject  can  not  be  con- 
sidered settled,  (d)  It  is  worthy  of  observation,  that 
in  cases  of  treason  the  prisoner  is  not  only  allowed,  but 
invited  by  the  court,  to  address  the  jury  after  his 
counsel  have  spoken  for  him.  (e) 

636.  II.  Proceeding  to  the  second  part  of  our 
subject:  the  first  incident  connected  with  a  trial, 
which  requires  particular  notice,  is  the  practice  of 
ordering  witnesses  out  of  court.  When  concert  or 
collusion  among  witnesses  is  suspected,  or  there  is 
reason  to  apprehend  that  any  of  them  will  be  influ- 
enced by  the  statements  of  counsel,  or  the  evidence 
given  by  other  witnesses,  the  ends  of  justice  require 


(d)  R.  v.    Malings,  8  C.  &   P.  242  ;  R.  v.  Ings,   Id.  1107  ;  R.    v.  Collins,  5 

R.  v.  Walkling,  Id.    243  ;  R.  v.   Clif-  C.  &  P,  311  ;   R.  v.   Frost,  9  Id.   161, 

ford,  2  Car.  &  K.  206  ;  R.  v.  Manzano,  &c,  &c.     In  R.    v.   O'Coigly,    26  Ho. 

2  F.  &  F.  64.     See  also  R.  v.    Haines,  St.    Tr.  iiqi,    1374,   Buller,   J,  gave 

1  F.  &  F.  86  ;  and   R.   v.   Taylor,   Id.  the  prisoners  the  option  of  addressing 

535.  the  court,  either  before  or  after  theil 

(«f)  See  R.  v.  Watsc'n,  32  Ho.  St.  Tr.  counsel  had  spoken. 
538  ;  R.  v.  Thistlevvood,  33  Id.  894  ; 


TRIAL    AND    ITS    INCIDENTS.  1067 

that  they  be  examined  apart ;  and  the  court  will  pro- 
prio  motu,  or  on  the  application  of  either  party,  order 
all  the  witnesses,  except  the  one  under  examination 
to  leave  court.  This  practice  is  probably  coeval  with 
judicature.  "  Si  necessitas  exegerit,"  says  Fortes- 
cue,  (f )  "  dividantur  testes,  donee  ipsi  deposue- 
rint  quicquid  velint,  ita  quod  dictum  unius  non 
docebit,  aut  concitabit  eorum  alium  ad  consimiliter 
testificandum."  The  better  opinion,  however,  seems 
to  be  that  this  is  not  demandable  ex  debito  jus- 
titiae ;  (g)  and  there  may  be  cases  where  it  would  be 
judicious  to  refuse  it.  It  is  said  that  the  rule  does 
not  extend  to  the  parties  in  the  cause ;  (Ji)  nor,  at 
least  in  general,  to  the  attorneys  engaged  in  it.  (?)  A 
witness  who  disobeys  such  an  order  is  guilty  of  con- 
tempt;  but  the  judge  can  not  refuse  to  hear  his  evi- 
dence, (/£')  although  the  circumstance  is  matter  of 
remark  to  the  jury.  In  revenue  cases  in  the  Ex- 
chequer, indeed,  it  is  said  that  his  evidence  is  impera- 
tively excluded.  (/)  And  in  order  to  prevent  com- 
munication in  such  cases,  between  witnesses  who  have 
been  examined  and  those  awaiting  examination,  it  is 
a  rule  that  the  former  must  remain  in  court,  until  the 
latter  are  examined.  But  where  the  first  witness  ex- 
amined was  a  respectable  female,  and  some  indelicate 
evidence  was  expected  to  be  given  by  the  other  wit- 
nesses, it  was  arranged  that  she  should  be  taken  out 


(/)  C.  26.  P.  91. 

(g)  See  the  authorities  collected,  I  (k)  Chandler  v.  Home,  2  Moo.  &  R. 

Greenl.  Ev.  g  432,  7th  Ed. ;  Tayl.  Ev.  423  ;  Cook  v.   Nethercote,  6  C.  &   P. 

§  1259,  4''1  Ed.  743,  and  the  cases  there   referred    to  ; 

1 //    <  harnock  v.  Dewings,  3  Car.  &  and  per  Lord  Campbell,  delivering  the 

K.  378;  Constance  v.  Brain,  2  Jur.,  N.  judgment  of   the   court    in   Cobbett  v 

S   1145  ;  Self;  v.  Isaacson,  I  F.  &  F.  Hudson,  1  Ell.  &  1!.  it,  14. 

1Q4.  (/)  Rose.  Cr.  Ev.  127-8,  6th   Ed.  ;  1 

(t)  Pomeroy  v.  Baddeley,  Ry.  &  M.  Greenl.    Ev.  432,  7th   Ed.;  and  Tayl. 

♦30  ;  Everett  v.   Lownham,   5    Car.  &  Ev.  §  1260,  4th  Ed. 


:o68  FORENSIC    PRACTICE. 

of  court,  and    kept    under  observation    in  a  separate 
apartment,  (ni) 

637.   Next,  with  respect  to  the  Order  of   Begin- 
ning, or  Ordo  Incipiendi.     This   is  known  in  practice 
as  the   "Right  to  Begin;"    not    a    very  accurate    ex- 
pression— for  it  assumes  that  beginning  is  always  ar, 
advantage,  whereas    it    may    be    quite    the    reverse 
There    are    few   heads   of  practice   on  which  a  larger 
number  of  irreconcilable  decisions  have  taken  place. 
It  is  sometimes  said  that  as  the  plaintiff  is  the  party 
who  brings  the  case  into  court,  it  is  natural  that  he 
should    be  first  heard  with  his  complaint ;  and  in  one 
sense  of  the  word  the  plaintiff  always  begins ;  for,  with- 
out a  single    exception,  the  pleadings  are  opened  by 
him,  or  his  counsel,  and  never  by  the  defendant  or  his 
counsel.     But,  as  it  is    agreed    on  all   hands  that  the 
order  of  proving  depends  on  the  burden  of  proof;  if 
it  appears  on  the  statement  of  the  pleadings,  or  what- 
ever is  analogous  thereto,  that  the  plaintiff  has  noth- 
ing to  prove — that  the  defendant  has  admitted  every 
fact  alleged,  and  takes  on  himself  to  prove  something 
which  will  defeat  the  plaintiff's  claim,  he  ought  to  be 
allowed  to  begin,  as  the  burden  of  proof  then  lies  en 
him.     The  authorities  on  this  subject  present  almost 
a  chaos.     Thus  much  only  is  certain,  that  if  the  onus 
of  proving  the  issues,  or  any  one  of  the  issues,  how- 
ever numerous  they  may  be,  lies  on  the  plaintiff,  he  is 
entitled  to  begin ;  (»)  and  it  seems  that  if  the  onus  of 
proving   all  the  issues  lies  on  the  defendant,  and  the 
damages  which  the  plaintiff  could  legally  recover  are 
ither  nominal,  or  mere  matter  of  computation,  here 

I'"!  Slreeten  v.  Black,  Guildf.  Sum.  277  ;  James  v.  Salter,  Td.  501  ;  Curtii 

Ass    1836,   cor.    Lord   Abinger,   C.    B.  v.  Wheeler,  4  C   &  P.  iq6;   Williams  v. 

MS.  Thomas,  Id.  234. 

(«)  Wood  v.  Pringle,   1   Moo.  &  R. 


TRIAL     AND     ITS     INCIDENTS.  1069 

also  the  defendant  may  begin.  (0)  But  the  difficulty 
is,  where  the  burden  of  proving  the  issue,  or  all  the 
issues,  if  more  than  one,  lies  on  the  defendant,  and 
the  onus  of  proving  the  amount  of  damage  lies  on 
the  plaintiff.  A  series  of  cases  (not  an  unbroken 
series,  for  there  were  several  authorities  the  other 
way),  concluding  with  that  of  Cotton  v.  James,  (/) 
in  1829,  established  the  position,  that  the  onus  of 
proving  damages  made  no  difference,  and  that  under 
such  circumstances  the  defendant  ought  to  begin. 
Of  these  the  most  remarkable  is  that  of  Cooper 
v.  YVakley,  (q)  in  1828;  where  it  was  held  by 
Lord  Tenterden,  C.  J.,  and  Baylay,  Littledale, 
and  Parke,  JJ.,  that  in  an  action  by  a  surgeon 
for  libel,  in  imputing  to  nim  unskillfulness  in  per- 
forming a  surgical  operation,  if  the  defendants  pleads 
a  justification  he  is  entitled  to  begin.  Thus  matter 
stood  until  the  case  of  Carter  v.  Jones,  (r)  in  1833, 
which  also  was  an  action  for  libel,  to  which  a  justifica- 
tion was  pleaded  ;  and,  on  the  right  to  begin  being 
claimed  by  the  defendant,  Tindal,  C.  J.,  before  whom 
the  case  was  tried,  said  that  a  rule  on  the  subject  had 
been  come  to  by  the  judges.  He  then  stated  verbally 
the  nature  of  that  rule,  but  his  language  is  given  very 
differently  in  the  two  reports  of  the  case.  In  Carring- 
ton  &  Payne,  it  is  reported  thus:  "The  judges  have 
come  to  a  resolution,  that  justice  would  be  better  ad- 
ministered by  altering  the  rule  of  practice,  in  the  re- 
spect alluded  to,  and  that,  in  future,  the  plaintiff 
should  begin  in  all  actions  for  personal  injuries,  and 
also  in  slander  and  libel,  notwithstanding  the  general 
issue  may  not  be    pleaded,  and  the  affirmative    be    on 

(0)  Fowler  v.  Coster,  I   Moo.  &  M.      273. 
241-  (?)  3  C.  &  P.  474  ;  I  Moo.  &  M.  248 

(/> )  3   C.   &  P.    505  ;   I    Moo.  &   M.  (r)  6  C.  &  P   64  ;   I  Moo   &  R.  281. 


io;o  FORENSIC    PRACTICE. 

the  defendant It  is  most  reasonable  that 

the  plaintiff,  who  brings  the  case  into  court,  should  be 
heard  first  to  state  his  complaint."  In  Moody  & 
Robinson,  it  is  reported  thus:  "A  resolution  has  re- 
cently been  come  to  by  all  the  judges,  that  in  cases  of 
slander,  libel,  and  other  actions,  where  the  plaintiff 
seeks  to  recover  actual  damages  of  an  unascertained 
amount,  he  is  entitled  to  begin,  although  the  affima- 
tive  of  the  issue  may,  in  point  of  form,  be  with  the 
defendant."  As  might  have  been  expected,  many 
questions  arose  relative  to  the  extent  of  this  rule,  and 
especially  its  applicability  to  actions  of  contract;  but 
a  new  light  was  thrown  on  the  whole  subject  by  the 
case  of  Mercer  v.  Whall,  (s)  which  came  before  the 
Court  of  Queen's  Bench  in  1845;  m  which  Lord 
Denman,  C.  J.,  in  delivering  the  judgment  of  the 
court,  stated,  (7)  that  the  rule  promulgated  by  Chief 
Justice  Tindal  in  Carter  v.  Jones,  had  originally  been 
reduced  to  writing,  and  signed  with  the  initials  of 
several  of  the  judges,  and  was  then  in  his  own  posses- 
sion ;  that  its  terms  were,  that  "  in  actions  for  libel, 
slander,  and  injuries  to  the  person,  the  plaintiff  shall 
begin,  although  the  affirmative  issue  is  on  defendant:" 
and  that  that  rule  was  not  at  all  intended  to  introduce 
a  new  practice,  but  was  declaratory  or  restitutive  of 
the  old,  which  had  been  broken  in  upon  by  Coopei 
v.  Wakley,  and  that  class  of  cases,  (u)  Since  Mercer 
v.  Whall,  the  subject  seems  to  have  been  better  under- 
stood :  and,  whether  the  rule  in  Carter  v.  Jones  is  to  be 
considered  as  declaratory  or  enacting,  it  certainly  is  a 
great  step  in    the   right  direction,  of  restoring   to  the 

(s)  5  Q.  B.  447.  they  are  very  numerous,  not  a  single 

(/)  Id.  462.  expression  of  any  judge  is  to  be  found, 

(u)  It  is  remarkable  that  in  all  the  implying  that  it  was  declaratory  in  its 

cases  decided  on   the   construction  of  nature. 

this  rule,  between   1S33  and  1S45,  and 


TRIAL     AND    ITS    INCIDENTS.  1071 

piaintiff  his  natural  "right  to  begin,"  whenever  he 
really  has  anything  to  prove.  In  some  instances 
the  right  to  begin  is  regulated  by  statute,  (v)  1 

638.  Much  of  the  confusion  and  inconsistent  ruling 
on  this  subject,  may  be  traced  to  a  notion  which 
formerly  prevailed,  viz.,  that  the  order  of  beginning  was 
exclusively  to  be  determined  by  the  judge  as  Nisi  Priusi 
and  that,  consequently,  the  court  in  banc  would  not 
interfere  to  rectify  any  mistake,  however  gross,  which 
might  be  committed  in  this  respect,  (x)  It  would,  it  was 
argued,  lead  to  much  litigation  and  vexation  if  motions 
for  new  trials  were  entertained  on  such  a  ground; 
especially  as,  since  the  wrong  decision  of  the  judge  would 
in  all  likelihood  be  founded  on  a  misconception  of  the 
onus  probandi,  he  would  carry  that  erroneous  view  into 
his  direction  to  the  jury,  in  which  case  a  new  trial 
would  be  grantable  ex  debito  justitios,  for  an  inversion 
of  the  burden  of  proof.  But  in  many  cases,  the  fact 
of  allowing  the  wrong  party  to  begin,  might  be  pro- 
ductive of  the  greatest  mischief,  although  followed  by 
an  unimpeachable  summing-up.  And  a  series  of 
authorities  has  now  settled,  that  where  the  ruling  of 
the  judge  with  reference  to  the  right  to  begin,  is 
erroneous  in  the  judgment  of  the  court  in  banc,  and 
"  clear  and  manifest  wrong "  has  resulted  from  that 
ruling,  a  new  trial  will  be  granted  by  the  court,  not  as 
matter  of  right,  but  as  matter  of  judgment,  (j) 

(v)  E.g.,  15  &  16  Vict.  c.  83,  s.  41.  Edwards  v.   Matthews,    II    Jur.   3981 

(x)  Bird  v.    Higginson,  2  A.  &    E.  Brandford  v.  Freeman,  5   Exch.   734 

160  ;  Burrel  v.    Nicholson,  1    Moo.  &  Leete  v.  The  Gresham  Life  Insurance 

R.  304  ;  Ashhy  v.  Bates,  15   M.  &  W.  Society,  15  Jur.  1161  ;  A>hby  v.  Bates, 

596,  per  Rolfe,  B.  15  M.  &  W.   589  ;    Booth   v.  Millns, 

{y)  Geach  v.  Ingall,  14  M.  &  W.  95;  Id.  669  ;  Huckman  v.  Fernie,  3   M.  & 

1  See  Mr.  Reed's  "Practical  Suggestions  f°r  tne  Manage 
ment  of  Lawsuits,"  N.  Y.,  James  Cockcroft  &  Co  ,  1875,  pc 
236-341 


FORENSIC    PRACTICE. 

639.  The  right  to  begin  is  an  advantage  to  a  party 
who  has  a  strong  case  and  good  evidence,  as  it  enables 
him  to  make  the  first  impression  on  the  trbunal ;  and 
if  evidence  is  adduced  by  the  opposite  side,  it  entitles 
him  to  reply,  thus  giving  him  the  last  word.  But  if 
the  case  of  a  party  be  a  weak  one ;  if  he  has  only 
slight  evidence,  or  perhaps  none  at  all  to  adduce  in 
support  of  it  ;  and  goes  to  trial  on  the  chance  (if 
defendant)  of  the  plaintiff  being  nonsuited,  or  that  the 
case  of  the  opposite  party  may  break  down  through 
its  own  intrinsic  weakness ;  or  trusting  to  the  effect 
of  an  address  to  the  jury  ;  the  fact  of  his  having  to 
begin  might  prove  instantly  fatal  to  his  cause.  Thus 
in  Edwards  v.  Jones,  {£)  which  was  an  action  by  the 
indorsee  against  the  maker  of  a  promissory  note,  to 
which  the  defendant  pleaded  a  long  plea,  amounting 
in  substance  to  want  of  consideration  for  the  note  ;  to 
a  portion  of  which  the  plaintiff  replied,  that  there  had 
been  a  good  consideration  given  for  the  note,  and  to 
the  rest  entered  a  nolle  prosequi  ;  the  judge  having 
ruled  that  the  defendant  should  begin,  his  counsel  was 
obliged  to  admit  that  he  had  no  witnesses ;  and  the 
judge  immediately  directed  the  jury  to  find  a  verdict 
against  him. 

640.  3.  We  have  already  referred  to  the  rule  of 
practice  which  prohibits  counselor  the  parties  in  civil 
cases,  (a)  and  perhaps  also  the  counsel  for  accused 
parties  in  criminal  cases,  (b)  from  stating  any  facts  to 
the  jury  wmich  they  do  not  intend  offering  evidence  to 
prove.  This  must  not,  however,  be  understood  too 
literally.     A  counsel  or  party  has  a  right  to  allude  to 

W.    505    (as    corrected   in    Booth    v.  Doe  d.  Bather  v.  Brayne,  5  C.  B.  665 
Millns,     Edwards    v.    Matthews,    and  (z)  7  C.  &  P.  633. 

Brandford    v.    Freeman);    Mercer    v.  (a)  Supra,  §§  631,  635. 

Whall,  5  Q.  B.  447  ;  Doe  d.  Worcester  (6)  Supra,  %  635. 

Trustees  v.  Rowlands,  9  C.  &  P.  736  ; 


TRIAL    AND     ITS    INCIDENTS.  1073 

any  facts  of  which  the  court  takes  judicial  cognizance, 
or  the  notoriety  of  which  dispenses  with  proof,  (c)  But 
more  difficulty  arises  with  respect  to  historical  facts. 
A  public  and  general  history  is  receivable  in  evidence 
to  prove  a  matter  relating  to  the  kingdom  at  large  ;  (d) 
probably  for  the  same  reason  that  the  law  permits 
matters  of  public  and  general  interest,  to  be  proved 
by  the  declarations  of  deceased  persons,  who  may  be 
presumed  to  have  had  competent  knowledge  on  the 
subject ;  or  by  old  documents  which,  under  ordinary 
circumstances,  would  be  rejected  for  want  of 
originality,  (e)  Although  there  are  cases  to  be 
found  in  the  books,  where  histories  have  been  received 
in  evidence,  and  which  it  might  be  difficult  to  sup- 
port on  this  principle.  (/)  But  a  history  is  not 
receivable  to  prove  a  private  right  or  particular 
custom,  (g)  In  a  recent  case,  (A)  it  was  held  by  the 
Court  of  Exchequer,  that  counsel,  or  a  party  at 
a  trial,  may  refer  to  matters  of  general  history,  pro- 
vided the  license  be  exercised  with  prudence ;  but 
can  not  refer  to  particular  books  of  history,  or  read 
particular  passages  from  them,  to  prove  any  fact  rele- 
vant to  the  cause.  Also  that  works  of  standard 
authority  in  literature  may,  provided  the  privilege  be 
not  abused,  be  referred  to  by  counsel  or  a  party  at  a 
trial,  in  order  to  show  the  general  course  of  com- 
position, explain  the  sense  in  which  words  are  used, 
and  matters  of  a  like  nature;  but  that  they  can  not 
be  resorted  to  for  the  purpose  of  proving  facts  relevant 
to  the  cause.     And   Sir  Edward  Coke  lays  down — 


(c)  Bk.  3,  pt.  1,  ch.  1,  §§  252-254.  Ed.  ;  Tayl.  Ev.  §  1585,  4th  Ed. 

(</)  B.  N.  P.  248;  2  Phill.  Ev.  155,  (g)  2    Phill.    Ev.    165,     10th    Ed  j 

loth  Ed.  ;  Tayl.  Ev.  §  1585,4th  Ed.  Tayl.  Ev.  §  1585,  4th  Ed. 

(e)  Bk.  3,  pt.  2,  ch.  4,  §£  497,  499.  {'')  Darby  v.  Ouseley,  2  Jurist,  N.S. 

(/)  See  2    Phill.    Ev.    155-6,    10th  497  ;   1  H.  &  N.  I. 
68 


io74  FORENSIC     PRACTICE. 

"  Authoritates  philosophorum  medicorum.et  poetarum 
sunt  in  causis  allegandoe  et  renendoe."  (z)  1 

641.  4.  The  chief  rule  of  practice  relative  to  the 
interrogation  of  witnesses,  is  that  which  prohibits 
"  leading  questions :  "  i.  e.,  questions  which  directly  or 
indirectly  suggest  to  the  witness  the  answer  he  is  to 
give.  The  rule  is,  that  on  material  points  a  part) 
must  not  lead  his  own  witnesses,  but  may  lead  those 
of  his  adversary;  in  other  words,  that  leading  ques- 
tions are  allowed  in  cross-examination,  but  not  in  ex- 
amination-in-chief. This  seems  based  on  two  reasons. 
First,  and  principally,  on  the  supposition,  that  the 
witness  has  a  bias  in  favor  of  the  party  bringing  him 
forward,  and  hostile  to  his  opponent.  Secondly,  that 
the  party  calling  a  witness  has  an  advantage  over  his 
adversary,  in  knowing  beforehand  what  the  witness 
will  prove,  or  at  least  is  expected  to  prove  ;  and  that, 
consequently,  if  he  were  allowed  to  lead,  he  might 
interrogate  in  such  a  manner,  as  to  extract  only  so 
much  of  the  knowledge  of  the  witness  as  would  be 
favorable  to  his  side,  or  even  put  a  false  gloss  upon 
the  whole.  (£)  On  all  matters,  however,  which  are 
merely  introductory,  and  form  no  part  of  the  substance 
of  the  inquiry,  it  is  both  allowable  and  proper  for  a 
party  to  lead  his  own  witnesses,  as  otherwise  much 
time  would  be  wasted  to  no  purpose.  It  is  sometimes 
said,  that  the  test  of  a  leading  question  is,  whether  an 
answer  to  it  by  "  Yes  "  or  "  No  "  would  be  conclusive 
upon  the  matter  in  issue ;  (/)  but  although  all  such 
questions  undoubtedly  come  within  the  rule,  it  is  by 
no  means  limited  to  them.     Where  "  Yes  "  or  "  No  M 

(t)  Co.  Litt.  264a.  461,  10th  EJ. 

(*)  Ph.  &  Am.  Ev.  887  ;  2  Ph.  Ev.  (1)  Rose.  Crim.  Ev.  130,  6th  Ed. 

1  The  authority  of  philosophers,  physicians  and  poets  is  to 
be  alleged  and  respected  in  legal  proceedings. 


TRIAL    AND     ITS    INCIDENTS.  1075 

would  be  conclusive  on  any  part  of  the  issue,  the 
question  would  be  equally  objectionable :  as  if,  on  a 
traverse  of  notice  of  dishonor  of  a  bill  of  exchange,  a 
witness  were  led  either  as  to  the  fact  of  giving  the 
notice,  or  as  to  the  time  when  it  was  given.  So,  lead- 
ing questions  ought  not  to  be  put  when  it  is  sought 
to  prove  material  and  proximate  circumstances.  Thus, 
on  an  indictment  for  murder  by  stabbing,  to  ask  a  wit- 
ness whether  he  saw  the  accused,  covered  with  blood 
and  with  a  knife  in  his  hand,  coming  away  from  the 
corpse,  would  be  in  the  highest  degree  improper, 
though  all  the  facts  embodied  in  this  question  are 
consistent  with  his  innocence.  In  practice  leading 
questions  are  often  allowed  to  pass  without  ob- 
jection, sometimes  by  express,  and  sometimes  by 
tacit  consent.  This  latter  occurs  where  the  ques- 
tions relate  to  matters  which,  though  strictly  speak- 
ing in  issue,  the  examining  counsel  is  aware  are 
not  meant  to  be  contested  by  the  other  side  ;  or  where 
the  opposing  counsel  does  not  think  it  worth  his  while 
to  object. 

On  the  other  hand,  however,  very  unfounded  ob- 
jections are  constantly  taken  on  this  ground.  A  ques- 
tion is  objectionable  as  leading  when  it  suggests  the 
answer,  not  when  it  merely  directs  the  attention  of 
the  witness  to  the  subject  respecting  which  he  is 
questioned.  E.  g.,  on  a  question  whether  A  and  B  were 
partners,  it  has  been  held  not  a  leading  question  to  ask  if 
A  has  interfered  in  the  business  of  B  ;  (m)  for,  even 
supposing  he  had,  that  falls  far  short  of  constituting 
him  a  partner.  In  an  action  for  slander,  (71)  in  saying 
of  a  tradesman  that  "  he  was  in  bankrupt  circumstan- 
ces, that  his  name  had  been  seen  in  a  list  in  the  Bank- 

(«)  Nicholli  v.    Dowding,  I  Stark.  («)   Rivers  v.  Hague,  C.    B.  Sittings 

Bi.  after  Mich.  Term,  1S57,  MS. 


1076  FORENSIC    PRACTICE. 

rupcty  Court,  and  would  appear  in  the  next  Gazette ; " 
a  witness, — having  deposed  to  a  conversation  with  the 
defendant,  in  which  he  made  use  of  the  first  two  of 
these  expressions, — was  asked,  "  Was  anything  said 
about  the  Gazette  ?  "  This  was  objected  to  as  lead- 
ng  but  was  allowed  by  Tindal,  C.  J.  So,  although 
?here  is  no  case  where  leading  should  be  avoided  more 
than  when  it  is  sought  to  prove  a  confession  ;  still,  a 
witness  who  deposes  to  a  conversation  with  the  ac- 
cused, may,  after  having  first  exhausted  his  memory  in 
answering  the  question, — what  took  place  at  it. — be 
further  asked, — whether  anything  was  said  on  such  a 
subject,  i.  e.,  on  the  subject-matter  of  the  indictment. 
It  should  never  be  forgotten  that  "  leading"  is  a  rela- 
tive, not  an  absolute  term.  There  is  no  such  thing 
as  "  leading  "  in  the  abstract — for  the  identical  form  of 
question,  which  would  be  leading  of  the  grossest  kind 
in  one  case  or  state  of  facts,  might  be  not  only  un- 
objectionable, but  the  very  fittest  mode  of  interroga- 
tion in  another. 

642.  There  are  some  exceptions  to  the  rule  against 
leading.  1.  For  the  purpose  of  indentifying  persons 
or  thino;s,  the  attention  of  the  witness  mav  be  directlv 
pointed  to  them.  2.  Where  one  witness  is  called  to 
contradict  another,  as  to  expressions  used  by  the 
latter,  but  which  he  denies  having  used ;  he  may  be 
asked  directly,  Did  the  other  witness  use  such  and 
such  expressions  ?  (0)  The  authorities  are  not  quite 
agreed  as  to  the  reason  of  this  exception;  (/)  and 
some  strongly  contend,  that  the  memory  of  the  sec- 
ond witness  ought  first  to  be  exhausted,  by  his  being 
asked  what  the  other  said  on  the  occasion  in    ques- 


(•?N  Edmonds  v.  Walter,  3  Stark.  7.        43  ;  Hallett  v.  Cousens,  2  Moo.  &  R 
(/)  Courteen    v.  Touse,    1  Carnpb.      23S. 


TRIAL    AND    ITS     INCIDENTS.  1077 

tion.  (q)  3.  The  rule  which  excludes  leading  ques- 
tions,— being  chiefly  founded  on  the  assumption,  that 
a  witness  must  be  taken  to  have  a  bias  in  favor  of  the 
party  by  whom  he  is  called, — whenever  circumstances 
show  that  this  is  not  the  case,  and  that  he  is  either 
hostile  to  that  party  or  unwilling  to  give  evidence, 
the  judge  may  in  his  discretion  allow  the  rule  to  be 
relaxed,  (r)  And  it  would  seem,  that  for  the  same 
reason,  if  the  witness  shows  a  strong  bias  in  favor  of 
the  cross-examinaing  party,  the  right  of  leading  him 
ought  to  be  restrained;  but  the  authorities  are  not 
quite  clear  about  this,  (s)  4.  The  rule  will  be  relaxed 
where  the  inability  of  a  witness  to  answer  questions 
put  in  the  regular  way,  obviously  arises  from  defective 
memory  ;  or  5.  From  the  complicated  nature  of  the 
matter  as  to  which  he  is  interrogated. 

643.  Although  not  to  lead  one's  own  witness 
when  that  is  allowable,  is  by  no  means  so  bad  a  fault 
as  leading  improperly,  still  it  is  a  fault ;  for  it  wastes 
the  time  of  the  court,  has  a  tendency  to  confuse  the 
witness,  and  betrays  a  want  of  expertness  in  the  ad- 
vocate. There  are,  however,  cases  where  it  is  advisa- 
ble not  to  lead  under  such  circumstances.  Thus  on  a 
criminal  trial,  where  the  question  turns  on  identity; 
although  it  would  be  perfectly  regular  to  point  to  the 
accused,  and  ask  a  witness  if  that  is  the  person  to 
whom  his  evidence  relates,  yet  if  the  witness  can,  un- 
assisted, single  out  the  accused,  his  testimony  will  have 
more  weight. 

644.  5.  One  of  the  chief  rules  of  evidence,  as  has 
been  shown,  is,  that  no  evidence  ought  to  be  received 

(?)  Ph.   &  Am.  Ev.  S89;  I    Ph.  Ev.  (s)  See    Rose.    dim.    Ev.    131,  6th 

463,  ioih  Ed.  Ed  ;  2    Phill.   Ev.   472-3.    iotli    Ed.  ; 

(r)  Ph.  &  Am.   Ev.  8SS  •;  2  Ph,  Ev.  Tayl.  Ev.  §  1288,  4th  Ed. 
ioih  lid. 


1078  FORENSIC    PRACTICE. 

which  does  not  bear  immediately,  or  mediately,  on  the 
matters  in  dispute.  (/)  As  a  corollary  from  this,  all 
questions  tending  to  raise  collateral  issues,  and  all  evi- 
dence offered  in  support  of  such  issues,  ought  to  be 
rejected.  But  many  difficulties  arise  in  practice,  as  to 
what  shall  be  deemed  a  collateral  issue  with  reference 
to  the  credit  of  witnesses.  In  addition  to  counter- 
proofs  and  cross-examination,  there  are  three  ways  of 
throwing  discredit  on  the  testimony  of  an  adversary's 
witness,  i.  By  giving  evidence  of  his  general  bad 
character  for  veracity,/,  e.,  the  evidence  of  persons  who 
depose  that  he  is  in  their  judgment  unworthy  of  belief, 
even  though  on  his  oath.  And  here  the  inquiry  must 
be  limited  to  what  they  know  of  his  general  character, 
on  which  alone  that  judgment  should  be  founded  ;  par- 
ticular facts  can  not  be  gone  into.  (?/)  <;  There  are  two 
reasons,"  says  Parke,  B.,  in  the  Attorney-General  v. 
Hitchcock,  (x)  "why  collateral  questions,  such  a  wit- 
ness having  committed  some  particular  crime,  can  not 
be  entered  into  at  the  trial.  One  is  that  it  would  lead 
to  complicated  issues  and  long  inquiries  without  no- 
tice ;  and  the  other  that  a  man  can  not  be  expected  to 
defend  all  the  acts  of  his  life."  And  Alderson,  B.,  in  his 
judgment  in  that  case,  {y)  says,  "The.  inconvenience 
of  asking  a  witness  about  particular  transactions,  which 
he  might  have  been  able  to  explain  if  he  had  had  rea- 
sonable  notice  that  he  would  be  required  to  do  so, 
would  be  great — a  man  does  not  come  into  the  witness- 
box  prepared  to  show  that  every  act  of  his  life  has  been 
perfectly  pure  :  and  you  therefore  compel  the  opposite  t 
party  to  take  his  answer  relative  to  the  matter  imputed, 
as  otherwise  you  might  go  on  to  try  a  collateral  issue; 
and  if  you  were  allowed  to  try  the  collateral  issue  of  the 

(t)  Bk    3,  pi    I,  ch    l.  (*)   1 1  Jurist,  478,  479. 

(«)     d.  (M  !'■  48l. 


TRIAL    AND    ITS    INCIDENTS.  107.J 

witness  having  committed  some  offense,  you  might 
call  witnesses  to  prove  that  fact,  and  they  again  might 
likewise  be  cross-examined  as  to  their  own  conduct ; 
and  so  you  might  go  on  proving  collateral  issues  with- 
out end,  before  you  could  come  to  the  main  one.  The 
rules  of  evidence  stop  this  in  the  first  instance  or  the 
more  convenient  administration  of  justice;  and  you 
must  therefore  take  the  witness's  answer  and  indict  him 
for  perjmy  if  it  is  false."  2.  By  showing  that  he  has 
on  former  occasions  made  statements  inconsistent  with 
the  evidence  he  has  given.  But  this  is  limited  to  such 
evidence  as  is  relevant  to  the  cause :  for  a  witness  can 
not  be  contradicted  on  collateral  matters.  (2)  The 
17  &  18  Vict.  c.  125,  s.  23,  enacts  :  "  If  a  witness,  upon 
cross-examination  as  to  a  former  statement  made  by 
him  relative  to  the  subject-matter  of  the  cause,  and  in 
consistent  with  his  present  testimony,  does  not  dis- 
tinctly admit  that  he  has  made  such  statement,  proof 
may  be  given  that  he  did  in  fact  make  it ;  but  before 
such  proof  can  be  given,  the  circumstances  of  the 
supposed  statement,  sufficient  to  designate  the  par- 
ticular occasion,  must  be  mentioned  to  the  witness, 
and  he  must  be  asked  whether  or  not  he  has  made 
such  statement."  And  this  enactment,  which  was 
originally  applicable  only  to  courts  of  civil  judicature, 
has  now,  by  the  28  &  29  Vict.  c.  18,  ss.  1  and  4,  been 
extended  to  all  courts  of  judicature,  as  well  criminal  as 
all  others  ;  and  to  all  persons  having,  by  law  or  by  con- 
sent of  parties,  authority  to  hear,  receive,  and  examine 
evidence.  3.  By  proving  misconduct  connected  with 
the  proceedings,  or  other  circumstances  showing 
that  he   does  not  stand  indifferent  between  the  con- 

<s)  I  Stark.  Evid.   189,   3rd    Ed. ;  2  Ph.  Evid.  517  et  seq.,  10th  Ed. 


1080  FORENSIC    PRACTICE. 

tending  parties,  (a)  Thus  it  may  be  proved  that  a 
witness  has  been  bribed  to  give  his  evidence,  (b)  or 
has  offered  bribes  to  others  to  give  evidence  for  the 
party  whom  he  favors,  (c)  or  that  he  has  used  ex- 
pressions of  animosity  and  revenge  towards  the  party 
against  whom  he  bears  testimony,  (d)  &c.  We  must 
also  direct  attention  to  the  following  observations  of 
Parke,  R,  in  the  Attorney-General  v.  Hitchcock  :  (e) 
"  Under  the  old  law,  when  an  objection  was  raised  to 
the  competency  of  a  witness,  he  might  be  examined 
as  to  it  on  the  voir  dire,  and  evidence  might  be  ad- 
duced to  contradict  his  statement ;  and  the  issue  thus 
raised  was  determined  by  the  judge.  ...  At  that 
time  those  objections  went  to  the  disability  of  the 
witness ;  but  it  becomes  an  important  question 
whether  the  same  course  should  be  adopted  now,  since 
Lord  Denman's  Act,  6  &  y  Vict.  c.  85,  has  provided, 
that  no  person  shall  be  excluded  from  giving  evidence 
by  reason  of  incapacity  from  crime  or  interest — is  all 
evidence  of  his  being  interested  to  be  excluded  from- 
the  view  of  the  jury  ?  "  This  suggestion  does  not, 
however,  appear  to  be  followed  in  practice. 

645.  6.  With  respect  to  the  right  of  a  party  to 
discredit  his  own  witnesses.  We  will  consider  the 
matter,  first,  as  it  stood  at  the  common  law,  and  sec- 
ondly, under  the  17  &  18  Vict  c.  125,  and  28  &  29 
Vict.  c.  1 8.  First,  then,  of  the  common  law.  It  was  an 
established  rule,  that  a  party  should  not  be  allowed  to 

(a)  There  are    some    authorities    to      47S. 

the  contrary ;  but  they  seem  overruled  (c)  Lord   Stafford's   case,  7  Ho.  St. 

by  the  Attorney-General  v.  Hitchcock,  Tr.  1400,  recognized  in  the  Attorney- 

1  Exch.  91  ;  11  Jur.  478,  and  the  >  ases  General  v.  Hitchcock,  1  Exch.  91  ;  II 

there  cited  ;  and   are    indefensible   on  Jur.  47S. 

principle.  {d)  Yewin's  case,  2  Camp.  63S.  See 

(b)  Langhorn's  case,    7   Ho.  St.  Tr.  ad  id.  the  Attorney-General  v.  Hitcb 
446,  recognized  in   the  Attorney-Gen-  cock.  1  Exch.  91  ;   n  Jur.  478. 

era!  v.  Hitchcock,  I  Exch.  yi  ;   11  Jur.  (e)   11  Jurist,  47    , 


TRIAL    AND    ITS*  INCIDENTS.  10S1 

give  general  evidence  to  discredit  his  own  witness,  i.  e. 
general  evidence  that  he  is  unworthy  of  belief  on  his 
oath.     By  calling  the  witness,  a  party  represents  him 
to  the  court  as  worthy  of  credit,  or  at  least  not  so  in- 
famous as  to  be  wholly  unworthy  of  it ;  and  if  he  after- 
wards attack  his  general  character  for  veracity,  this  is 
pot  only  mala  fides  towards  the  tribunal,  but,  say  the 
bocks,  it  "would  enable  the  party  to  destroy  the  wit- 
ness if  he  spoke  against  him,  and  to  make  him  a  good 
witness    if  he  spoke  for  him,  with    the   means   in  his 
hand  for  destroying    his    credit  if  he    spoke    against 
him."  (/)     A  party  might,  however,  discredit  his  own 
witness  collaterally,  by  adducing  evidence  to  show  that 
the  evidence  which  he  gave  was   untrue    in    fact,  (g) 
This  does  not  raise  the  slightest  presumption  of  mala 
fides  ;  and  it  would  be  in  the  highest  degree  unjust  and 
absurd,  if  parties  were  bound  by  the  unfavorable  state- 
ments of  witnesses  with  whom  they  may  have  no  privity, 
and  who  are  frequently  called  by  them  from   pure  ne- 
cessity.    But  whether  it  was  competent  for  a  party  to 
show,  that  his  own  witness  had  made  statements  out 
of  court,  inconsistent  with  the  evidence  which  he  had 
given  in  it,  was  an  unsettled  point,  on  which,  however, 
the  weight   of  authority  was   in   favor  of  the   nega- 
tive. (Ji)     On  the   one    hand  it  was    urged,  that    this 
falls  within    the  principle  of  the   general  rule,  that  a 
party  must    not    be   allowed    directly  to  discredit  his 
own  witness;  (i)  that,  to  admit  proof  of   contradic- 
tory statements  would  tend  to  multiply  issues ;  that  it 
would  enable  a  party  to  get  the  naked  statement  of  a 
witness  before  the  jury,  operating  in  fact   as   substan- 

(/)  B.  N.  P.  297  ;  2  Thill.  Ev.  525,  Ev.  §  1049,  1st  Ed.  ;  2  Ph.  Ev.  ?cS  e 

loth  Ed.  seq.  ioih  Ed.  ;  andMelhuish  v  Collier 

{g)  2  Ph.  Ev.  526,  10th  Ed.  15  Q.  B.  ayS. 

(A)  See    the    cases  collected,  Tayl.  (1)   Ph.  &  Am.  Ev.  904. 


io82  FORENSIC    PRACTICE. 

tive  evidence;  (/£)  that  there  should  be  some  danger 
of  collusion  and  dishonest  contrivance,  inasmuch  as  a 
witness  might  be  induced  to  make  a  statement  out  of 
court,  for  the  very  purpose  of  its  being  reserved,  and 
afterwards  used  to  contradict  him;  and  that  the  jury 
might  regard  such  a  statement  as  substantive  evidence 
in  the  cause.  Moreover,  the  use  of  oaths  and  the 
other  sanctions  of  truth  is  to  extract  facts  which  parties 
might  be  willing  to  conceal  ;  and  the  allowing  a  wit- 
ness to  be  thus  contradicted  holds  out  an  inducement 
to  him  to  maintain  by  perjury  in  court  any  false  or 
hasty  statements  he  may  have  made  out  of  it.  The 
following:  reasoning;  on  the  other  side  is  taken  from  a 
work  of  authority  :  (/)  "  It  may  be  argued,  the  evi- 
dence is  not  open  to  the  objection,  that  the  party  would 
thus  discredit  his  own  witness  by  general  testimony 
that,  although  a  party  who  calls  a  person  of  bad  char- 
acter as  a  witness,  knowing  him  to  be  such,  ought  not 
to  be  allowed  to  defeat  his  testimony  because  it  turns 
out  unfavorable  to  him,  by  direct  proof  of  general  bad 
character, — yet  it  is  only  just  that  he  should  be  permit- 
ted to  show,  if  he  can,  that  the  evidence  has  taken  him 
by  surprise,  and  is  contrary  to  the  examination  of  the 
witness,  preparatory  to  the  trial ;  that  this  course  is  ne- 
cessary, as  a  security  against  the  contrivance  of  an  art- 
ful witness,  who  otherwise  might  recommend  himself 
to  a  party  by  the  promise  of  favorable  evidence  (being 
really  in  the  interest  of  the  opposite  party),  and  af- 
terwards by  hostile  evidence  ruin  his  cause ;  that  the 
rule,  with  the  above  exception,  as  to  offering  contradic- 
tory evidence,  ought  to  be  the  same,  whether  the  wit- 
ness is  called  by  the  one  party  or  the  other;  and  that  the 
danger  of  the  jury's  treating  the  contradictory  matter 
as  substantive   testimony,  is  the  same  in  both  cases; 

{k)  Tayl.  Ev.  g  1048    :st  Ed.  (/)  Ph.  &  Am.  Ev.  905. 


TRIAL    AND    ITS    INCIDENTS.  1083 

that,  as  to  the  supposed  danger  of  collusion,  it  is  ex- 
tremely improbable,  and  would  be  easily  detected.  It 
may  be  further  remarked,  that  this  is  a  question  in 
which,  not  only  the  interests  of  litigating  parties  are 
involved,  but  also  the  more  important  general  interests 
of  truth,  in  criminal  as  well  as  in  civil  proceedings ; 
that  the  ends  of  justice  are  best  attained,  by  allowing 
a  free  and  ample  scope  for  scrutinizing  evidence  and 
estimating  its  real  value  ;  and  that  in  the  administra- 
tion of  criminal  justice,  more  especially,  the  exclusion 
of  the  proof  of  contrary  statements  might  be  attended 
with  the  worst  consequences."  Besides,  it  by  no  means 
follows,  that  the  object  of  a  party  in  contradicting  his 
own  witness  is  to  impeach  his  veracity — it  may  be  to 
show  the  faultiness  of  his  memory.  (//) 

In  this  state  of  the  law  the  17  &  18  Vict.  c.  125,  s 
22,  was  passed — which  was  originally  applicable  only 
to  civil  courts,  (m)  but  has  since  been  extended  (11) 
to  all  courts  of  judicature,  as  well  criminal  as  all  others, 
and  to  all  persons  having,  by  law  or  by  consent  of  par- 
ties, authority  to  hear,  receive  and  examine  evidence, 
— and  which  enacts,  that  "  A  party  producing  a  witness 
shall  not  be  allowed  to  impeach  his  credit  by  general 
evidence  of  bad  character,  but  he  may,  in  case  the  wit- 
ness shall  in  the  opinion  of  the  judge  prove  adverse, 
contradict  him  by  other  evidence,  or,  by  leave  of  the 
judge,  prove  that  he  has  made  at  other  times  a  state- 
ment inconsistent  with  his  present  testimony  ;  but  be- 
fore such  last-mentioned  proof  can  be  given,  the  cir- 
cumstances of  the  supposed  statement,  sufficient  to 
designate  the  particular  occasion,  must  be  mentioned 
to  the  witness,  and  he  must  be  asked  whether  or  not 
he  has  made  such  statement."     And  it  has  been  held 

(.7)  Tayl.  Ev.  §  ic+7,  ist  Ed.  {n)  2S  &  29  Vict.  c.  18,  ss. 

(m)  See  sect.  103. 


1084  FORENSIC    PRACTICE. 

by  the  Court  of  Common  Pleas,  that  the  term  "  ad- 
verse" in  this  section,  must  be  understood  in  the  sense 
of  the  witness  exhibiting  a  hostile  mind  towards  the 
party  calling  him,  and  not  merely  in  the  sense  that  his 
testimony  turns  out  to  be  "  unfavorable "  to  that 
party  ;  (p)  and  by  the  Court  of  the  Queen's  Bench,  that 
a  statement  contradicting  the  evidence  of  a  witness 
under  it,  may  be  contained  in  a  series  of  documents, 
not  one  of  which,  taken  by  itself,  would'  amount  to  a 
contradiction  of  the  witness.  (/>) 

646.  7.  While  the  indefinite,  or  even  frequent  ad- 
journment of  its  proceedings,  is  at  variance  with  the 
very  nature  of  a  judicial  tribunal,  (^)  still  a  power  of 
adjournment  in  certain  cases,  exercised  with  due  cau- 
tion and  discretion,  is  indispensable  to  the  sound  and 
complete  administration  of  justice.  As  regards  crim- 
inal cases,  it  is  said  that  it  is  incident  to  a  criminal 
trial,  that  the  court  may,  for  sufficient  reason,  adjourn 
it.  (r)  But  this  rule  seems  not  to  have  been  recog- 
nized in  civil  cases, — a  point  as  to  which  the  Com- 
missioners fur  inquiring  into  the  process,  practice,  and 
system  of  pleading  in  the  Superior  Courts  of  Com- 
mon Law,  express  themselves  as  follows:  (s)  "It 
occasionally  happens  that  a  party  is  taken  by  surprise 
by  his  adversary's  case  ;  that  a  witness  or  a  document 
becomes  unexpectedly  necessary,  and  is  not  forth- 
coming ;  that  a  document  turns  out  to  be  attested, 
and  the  attesting  witness  is  not  present ;  or  requires  a 
stamp,  but  no  stamp,  or  an  insufficient  one,  has  been 
affixed.  In  these  and  the  like  cases,  miscarriage  of 
'ustice  must  occur   unless   time  is  afforded  to   enable 


(0)  Greenoughv.  Eccles,  5  C.  B.,  N  (q)  Introd.  pt.  2,  S£  41  etseq. 

5.  786.  (r)  Per  Blackburn,  J.,  R.  v.  Castro, 

(/)  Jackson  v.  Thomason,  1  B.  &  S.  L.  Rep.,  9  Q.  B.  350,  356. 

7^5.  (.r)  Second  Report,  p.  10. 


TRIAL     AND     ITS    INCIDENTS.  1085 

the  defic  ent  matter  to  be  supplied.  We  think  the 
rigorous  inflexibility  with  which  a  cause  once  com- 
menced is  now  carried  on  to  its  close,  might  be  mod- 
ified with  advantage.  No  doubt,  encouragement 
should  not  be  held  out  to  parties  to  be  negligent  in 
getting  up  their  proofs  or  coming  unprepared  to  trial; 
but,  on  the  other  hand,  it  is  important  not  to  allow 
justice  to  miscarry, or  parties  to  be  put  to  the  expense 
of  another  trial,  when,  by  a  temporary  adjournment,  a 
deficiency  in  proof  may  be  supplied."  And  these 
views  have  been  carried  into  effect  by  17  &  18  Vict, 
c.  1 25,  s.  19,  which  enacts,  that  "  It  shall  be  lawful  for  the 
court  or  judge,  at  the  trial  of  any  cause,  where  they 
or  he  may  deem  it  right  for  the  purposes  of  justice,  to 
order  an  adjournment  for  such  time,  and  subject  to 
such  terms  and  conditions  as  to  costs,  and  otherwise, 
as  they  or  he  may  think  fit." 

647.  8.  There  were  formerly  two  ways  of  question- 
ing the  ruling  of  a  court  or  judge,  on  matters  of  evi- 
dence in  civil  cases.  1.  By  bill  of  exceptions  founded 
on  the  statute  West.  2  (13  Edw.  I.)  c.  31,  stat.  r  : — 
''  Cum  aliquis  implacitatus  coram  aliquibus  justiciary's, 
proponat  exceptionem,  et  petat  quod  justiciarii  earn 
allocent,  quam  si  allocare  noluerint,  si  ille,  qui  excep- 
tionem proponet,  scribat  illam  exceptionem  et  petat 
quod  justiciarii  apponant  sigilla  in  testimonium,  jus- 
ticiarii sigilla  sua  apponant ;  et  si  unus  apponere 
noluerit,  apponat  alius  de  societate."  And  if  a  judge 
refused  to  seal  a  bill  of  exceptions,  the  party  might 
have  a  compulsory  writ  against  him,  commanding 
him  to  seal  it  if  the  fact  alleged  were  trully  stated  ; 
and  if  he  returned  that  the  fact  was  untrulv  stated 
when  the  case  was  otherwise,  an  action  wuuld  li 
against  him  for  making  a  false  return.  (7) 

(/)  3  Blackst.  Comm.  372 


io86  FORENSIC    PRACTICE. 

But,  by  the  "  Supreme  Court  of  Judicature  Act, 
1873,"  (it)  bills  of  exceptions  and  proceedings  in  error 
are  now  abolished. 

2.  The  improper  admission  or  rejection  of  evidence, 
was  also  a  ground  for  an  application  to  the  court  in 
banc  for  a  new  trial.  And  this  mode  of  proceeding 
was  generally  adopted  in  preference  to  that  by  bill 
of  exceptions,  partly  through  the  absurd  notion,  that 
the  tendering  a  bill  of  exceptions  was  disrespectful  to 
the  judge ;  but  principally  to  avoid  expense  and 
delay.  But  the  court  would  often  refuse  a  new  trial, 
even  where  an  undoubted  error  had  been  committed 
by  the  judge,  if  they  thought  that  under  all  the  circum- 
stances justice  had  been  done ;  (x)  and  now,  by  the 
"  Supreme  Court  of  Judicature  Act,  1873,"  (jj/)  a  new 
trial  shall  not  be  granted  on  the  ground  of  misdirec- 
tion, or  of  the  improper  admission  or  rejection  of  evi- 
dence, unless  in  the  opinion  of  the  court  to  which  the 
application  is  made,  some  substantial  wrong  or  mis- 
carriage has  been  thereby  occasioned  in  the  trial  of  the 
action  ;  and  if  it  appear  to  such  court,  that  such  wrong 
or  miscarriage  affects  part  only  of  the  matter  in  contro- 
versy, the  court  may  give  final  judgment  as  to  part 
thereof,  and  direct  a  new  trial  as  to  the  other  part 
only. 

648.  2.  As  to  criminal  cases.  It  is  said  that  bills  of 
exceptions  do  not  lie  in  such  cases  (z) — and  they  are 
certainly  never  seen  in  practice.  But  the  Court  of 
Queen's  Bench  will  grant  a  new  trial  in  certain  cases 

(u)  36  &  37  Vict.  c.  66,  sched.,  rule  Mortimer    v.     M'Callan,    6    Id.    58 

49.  Bessey    v.    Wyndham,    6    Q.   B.    166 

(x)  Atkinson   v.   Pocock,   12  Jurist)  Stindt  v.  Roberts,  5  D.  &  L.  460. 
60,  and  the  cases  there  cited  ;  Cox  v.  (y)  36  &  37  Vict.  c.  66,  sched.,  rul« 

Kitchin,  I  Bos.  &  P.  338  ;  Wickes  y.  4S. 

Clutterbuck,    2    Bing.    483  ;    Doe   d.  (3)  Ph.  &  Am.  Ev.  947  ;  2  Ph.  Evid. 

Welsh  v.  Langfield,  16  M.  &  W.  497  ;  541-2,  10th  Ed. 


TRIAL    AND    ITS    INCIDENTS.  1087 

of  misdemeanor ;  (d)  and  on  one  occasion  it  did  so  in 
a  case  of  felony.  (6)  But  the  propriety  of  this  decision 
is  questionable  ;  (c)  and  the  Privy  Council,  in  a  recent 
case,  refused  to  be  bound  by  it.  (d)  Formerly,  when 
the  judge  before  whom  a  criminal  cause  was  tried  at 
the  Central  Criminal  Court,  or  on  circuit,  entertained 
a  doubt  on  any  point  of  law  or  evidence,  he  reserved 
the  question  for  the  consideration  of  the  judges  of  the 
superior  courts,  who  heard  it  argued,  and  if  they 
thought  the  accused  improperly  convicted,  recom- 
mended a  pardon.  But  the  judges  sitting  in  this  way 
had  no  jurisdiction  as  a  court,  and  were  only  assessors 
to  advise  the  judge  by  whom  the  matter  was  brought 
before  them.  By  11  &  12  Vict.  c.  78,  however,  this 
was  altered  ;  and  a  regular  tribunal,  consisting  of  at 
least  five  of  the  judges  of  the  superior  courts  at  West- 
minster (including  one  of  the  Chief  Justices  or  the 
Chief  Baron),  was  constituted,  for  the  decision  of  all 
points  reserved  on  criminal  trials  by  any  court  of  oyer 
and  terminer,  or  jail  delivery,  or  court  of  quarter  ses- 
sions. But  neither  under  the  old  practice  nor  under 
this  statute,  have  the  parties  to  a  criminal  proceeding 
any  compulsory  means  of  reviewing  the  decision  of 
the  judge. 

(a)  Archb.  Cr.  Off.  Pract.  96,  97  ;  R.  B.  942,  950,  per  Lord   Campbell  ;  R 

v.  Whitehouse,  1  Dearsl.  C.  C.    1  ;  R.  v.    Mawbey,   6    T.    R.  619,   638,  pei 

v.  Russell,  3  E.  &  B.  942.  Lord  Kenyon. 

(6)  R.  v.  Scaife,  2  Den.  C.  C.  281.  id)  R.  v.  Bertrand,  L.  Rep.,  I  P.  C 

(c)  See  the  note  to  that  case,  2  Den.  520. 
C.  C.  2S6  ;  also  R.  v.  Russell,  3  E.  & 


io88  FORENSIC    PRACTICE. 


PART    II. 


ELEMENTARY    RULES    FOR    CONDUCTING   THE    EXAMINA- 
TION   AND    CROSS-EXAMINATION    OF    WITNESSES. 


PARAGRAPH 

Design  of  this  Part 649 

An  objection  answered 650 

"Examination,"    and   "cross-examination"   or  "examination  ex    ad- 
verso  "          ............  651 

Examination  of  witnesses  favorable  to  the  cause  of  the  interrogator  .  652 

Examination  of  witnesses  whose  disposition  towards  the  cause  of  the 

interrogator  is  unknown  to  him            . 652 

'Cross-examination,"  or  "  examination  ex  adverso"    ....  653 

1°.  Testimony  false  in  toto 654 

1.  Where  the  fact  deposed  to  is  physically  impossible  .         .  654 

2.  Where  the  fact  deposed  to  is  improbable,  or  morally  im- 
possible   655 

2°.  Misrepresentation 656 

1.  Exaggeration 656 

2.  Evasion 657 

1.  Generality  and  indistinctness     .....  657 

2.  Equivocation          ........  657 

Effect  of  interest  and  bias  in  producing  untrue  testimony           .         .  658 

General  observations  as  to  the  course  of  cross-examination  .         .         .  659 

Dangers  of  it 660 

Talkative  witnesses 661 

Course  of,  should  be  subordinate  to  general  plan  for  the  conduct 

of  the  cause 662 

Conclusion 663 


649.  In  the  preceding  Part,  the  main  object  of 
this  work  was  brought  to  a  close.  The  final  one,  at 
which  we  have  now  arrived,  will  be  devoted,  not  to 
law  or  practice,  but  to  elementary  rules  for  the  guid- 
ance of  advocates  in  dealing  with  witnesses.  Much 
of  what  follows  will  doubtless  appear  very  obvious  to 


EXAMINATION    OF     WITNESSES. 


1080 


readers  experienced  in  such  affairs,  but  it  is  not  for 
them  that  this  Part  is  intended,  (a) 

650.  There  is  a  very  prevalent  notion  that  all  dis- 
cussion or  comment  on  this  subject  is  necessarily  use- 
less, if  not  worse.  This  seems  to  have  arisen  partly 
from  a  superficial  view  of  the  matter,  and  partly  from 
misapprehension  of  a  passage  in  Quintilian,  in  which 
he  is  supposed  to  intimate  his  opinion,  that  the  faculty 
of  interroeatino:  witnesses  with  effect  must  be  the  re- 
suit  either  of  natural  acuteness  or  of  practice.  If  the 
Roman  critic  meant,  what  he  certainly  does  not  ex- 
press— his  language  being  "  Naturali  magis  acumine, 
aut  usu  contingit  haec  virtus  " — that  no  rules  can  be 
laid  down  for  the  guidance  of  advocates  in  this  respect, 
he  was  most  inconsistent  with  himself;  for  in  the  very 


(a)  This  part  being  designed  solely 
for  those  whose  forensic  experience 
has  either  not  commenced,  or  is  very 
limited,  we  may  perhaps  be  excused 
for  inserting  the  following  judicious 
advice  given  to  young  advocates  by 
some  eminent  foreign  writers  :  "  A 
young  man  ought  to  present  himself 
with  an  honest  assurance  and  plead 
with  firmness,  but  with  modesty  in  his 
language  and  demeanor.  He  should 
avoid  the  affectation  of  fetching 
things  from  too  far,  and  should  not 
wander  from  his  subject.  If  he  de- 
mands a  favorable  hearing,  let  him  do 
it  with  dignity,  and  not  in  a  ramp- 
ant tone.  He  ought  neither  exalt 
himself  too  much,  nor  humble  himself 
too  much,  and  the  less  he  can  manage 
to  talk  about  himself  the  better.  If 
either  the  manner  or  matter  of  his 
discourse  affords  room  for  criticism, 
he  should  bear  it  patiently.  The  best 
works  are  subject  to  that  ;  and  a 
young  man,  especially,  must  not  flatter 
himself  with  being  all  at  once  above 
paying  this  tribute,  from  which  even 
those  who  have  grown  old  in  the 
6c, 


career  are  not  exempt."  Histoire 
abregee  de  l'Ordre  das  Avocats,  par 
M.  Boucher  d'Amis,  ch.  11.  The 
reader  will  find  this  in  M.  Dupin's 
work,  entitled  "  Profession  d'Avocat, 
Recueil  de  Pieces  contenant  l'Ex- 
ercice  de  cette  Profession."  A  good 
warning  is  likewise  to  be  found  in  thr 
following  :  "  Alii  memoriae  auditorum 
consulturi,  solis  inhaerebant  conclu- 
sionibus,  easque  modo  per  caussarum 
genera,  quae  vocant,  modo  per  qures- 
tiones  disponebant  :  modo  se  prns- 
clare  suo  functos  officio  existimabant, 
si  ad  singulos  titulos  aliqu  >t  casuum 
leviter    enucleatorum     centurias    pro- 

ponerent I  Hi    ad    me- 

moriam  omnia  referebaiit,  et  si  qui 
jejuna  ista  pnecepta  edidicerant,  et  ad 
singulas  quoestiones  ipsa  compendii 
verda  poterant  reddere,  eos  aliquot 
casuum  et  qurestiuncularum  myriadi- 
bus  suffarcinatos,  et  phaleri-i  ornatos 
doctoralibus,  ablegabant  in  forum, 
strepitum  his  armis  non  sine  horrore 
judicis  daturos:"  Heineccius,  ad 
Inst.  Praef.  p.  ix- 


1090  FORENSIC    PRACTICE. 

chapter  from  which  the  above  passage  is  taken,  (b)  he 
gives  a  series  of  rules  for  that  purpose,  which  have  been 
admired  in  every  age,  and  are  recommended  by  high 
authorities  in  our  own  law.  (c)  The  present  chapter 
is  in  truth  chiefly  founded  on  them,  as  the  constant 
references  will  show.  It  would  indeed  be  strange  if, 
while  perfection  in  all  other  arts  and  sciences  is  attained 
by  the  combination  of  study  and  experience,  the  fac- 
ulty of  examining  witnesses  with  effect — which  de- 
pends so  much  on  knowledge  of  human  nature,  and 
acquaintance  with  the  resources  of  falsehood  and  eva- 
sion, and  is  coeval  with  judicature  itself — should  be 
destitute  of  all  fixed  principles. 

65 1 .  The  terms  "  examination-in-chief"  and  "  cross- 
examination  "  are  commonly  applied,  respectively,  to 
the  interrogation  of  witnesses  by  the  party  who  pre- 
sents them  to  the  tribunal  and  by  his  adversary ;  the 
legal  rules  of  practice  governing  both  being,  as  has 
been  shown  in  the  preceding  Part,  (d)  mainly  based 
on  the  principle  that  every  witness  produced  ought  in 
the  first  instance  at  least,  to  be  presumed  favorably  dis- 
posed toward  the  party  by  whom  he  is  called.  The 
very  opposite  is,  however,  often  the  fact ;  and  accord- 
ingly in  what  follows  the  term  "  cross-examination  "will 
be  used  in  the  sense  of  "  examination  ex  ad  verso  ; "  (e) 
i.  e.y  the  interrogation  by  an  advocate  of  a  witness  hos- 
tile to  his  cause,  without  reference  to  the  form  in  which 
the  witness  comes  before  the  court. 


(i)  Quintil.   Inst.  Orat.   lib.   5,   cap.  Theages,  and  Eutyphron. 
7,  De  Testibus.     Quintilian  refers  to  (c)  3    Blackst.   Comm.    374  ;  Ph.  & 

the  dialogues  of  the   Socratic  philoso-  Am.  Ev.  90S  ;  I  Greenl.  Evid.  §  446 

phers,  and   especially  those  of  Plato,  noted),  7th  Ed. 

as  affording:  good  studies  in  the  art  of  (J)    Supra,    pt.    I,   ch.    2,    §§    641, 

cross-examination.       Among     Plato's  642. 

Divine    Dialogues,    see    in    particular  (e)  I  Benth.  Jud.  Ev.  496  and  50a 

the    Portagoras,    Second    Alcibiades 


EXAMINATION    OF     WITNESSES.         1091 

652.  In  the  former  of  these  cases,  i.  e.,  in  the  inter- 
rogation of  witnesses  favorable  to  the  cause  of  the 
advocate  by  whom  they  are  interrogated,  the  following 
advice  is  given  by  Ouintilian,  in  the  part  of  his  work 
to  which  reference  has  been  made:  "Si  habet  testam 
cupidum  lsedendi,  cavere  debet  hoc  ipsum,  ne  cupiditas 
ejus  appareat ;  nee  statim  de  eo  quod  in  judicium  venit 
rogare,  sed  aliquo  circuitu  ad  idpervenire,  ut  illi,  quod 
maxime  dicere  voluit,videaturexpressum  ;  nee  ninium 
instare  interrogation!,  ne  ad  omnia  respondendo  testis 
fidem  suam  minuat ;  sed  in  tantum  evocare  eum,  quan- 
tum sumere  ex  uno  satis  sit."  (/)'  So,  when  the  dispo- 
sition of  the  witness  towards  his  cause  is  unknown  to 
the  advocate:  "Si  nesciet  actor  quid  propositi  testis 
attulerit  :  paulatim,  et  (ut  dicitur)  pedetentim  inter- 
rogando  experiet.ur  animum  ejus,  et  ad  id  responsum 
quod  eliciendum  erit,  per  gradus  ducet.  Sed,  quia  non- 
nunquam  sun  hse  quoque  testium  artes,  ut  primo  ad 
voluntatem  respondeant,  quo  majore  fide  diversa  posted 
dicant,  est  oratoris,  suspectum  testem  dum  prodest, 
dimittere."  (^-)2     In  another  part  of  the  same  chapter 

(/)  Quint,  in  cat.  cit.  {g)  Id. 

1  "  If  he  find  the  witness  disposed  to  prejudice  the  accused, 
he  ought  to  take  the  utmost  care  that  his  disposition  may  not 
show  itself;  and  he  should  not  question  him  at  once  on  the 
point  for  decision,  but  proceed  to  it  circuitously,  so  that  what 
the  examiner  chiefly  wants  him  to  say,  may  appear  to  be 
wrung  from  him.  Nor  should  he  press  him  with  too  many 
interrogatories,  lest  the  witness,  by  replying  freely  to  every- 
thing, should  invalidate  his  own  credit ;  but  he  should  draw 
from  him  only  so  much  as  it  may  seem  reasonable  to  elicit 
from  one  witness." 

2  "  But  if  the  accuser  be  ignorant  of  the  witness's  dispo- 
sition, he  must  sound  his  inclination  cautiously,  interrogating 

im,  as  we  say,  step  by  step,  and  leading  him  gradually  to  the 
answer  which  is  necessary  to  be  elicited  from  him.  But  as 
there  is  sometimes  such  art  in  witnesses  that  they   answer  at 


1092  FORENSIC    PRACTICE. 

he  adds  :  "  Illce  vero  pessimae  artes,  testem  subornatum 
in  subsellia  adversarii  mittere,  ut  inde  excitatus  plus 
noccat,  vel  dicendo  contra  reum,  cum  quo  sederit ;  vel 
quum  adjuvissetestimonio  videbitur,  faciendo  ex  indus- 
trial multaimmodesteatqueintemperanter,  perquaenon 
a  se  tantum  dictis  detrahat  fidem,  sed  caeteris  quoque, 
qui  profuerant,  auferat  auctoritatem  ;  quorum  mention- 
em  habui,  non  ut  fierent,  sed  ut  vitarentur."  1 

653.  On  the  subject  of  "  cross-examination,"  or 
"examination  ex  adverso,"  the  following  celebrated 
passages  of  the  same  author  should  be  attentively 
studied  :  (//)  "  In  eo  qui  verum  invitus  dicturus  est 
prima  felicitas  interrogantis  est  extorquere  quod  is 
noluerit.  Hoc  non  alio  modo  fieri  potest,  quam 
longius  interrogatione  repetita.  Respondebit  enim 
quae  nocere  causae  non  arbitrabitur :  ex  pluribus 
deinde  quae  confessus  erit  eo  perducetur,  ut,  quod 
dicere  non  vult,  negare  non  possit.  Nam,  ut  in  ora- 
tione  sparsa  plerumque  colligimus  argumenta,  quae 
per  se  nihil  reum  aggravare  videantur,  congregatione 
deinde  eorum  factum  convincimus ;  ita  hujusmodi  testis 
multa  de  anteactis,multa  de  insecutis,  loco,  tempore,  per- 

(//)  Quint,  in  cap.  cit. 

first  according  to  an  examiner's  wish,  in  order  to  gain  greater 
credit,  when  they  afterwards  speak  in  a  different  way,  it  is 
wise  in  an  orator  to  dismiss  a  suspected  witness  before  he 
does  any  harm." 

1  "  As  to  those  disgraceful  practices  of  sending  a  suborned 
witness  to  sit  on  the  benches  of  the  opposite  party,  that  in 
being  called  from  thence,  he  may  do  him  the  more  damage, 
either  by  speaking  directly  against  the  person  on  whose  side 
he  has  placed  himself,  or  by  assuming,  after  having  appeared 
to  benefit  him  by  his  evidence,  airs  of  impudence  and  folly, 
by  which  he  not  only  discredits  his  own  testimony,  but  de- 
tracts from  the  weight  of  that  of  others  who  may  have  been 
of  service — I  mention  them,  not  that  they  may  be  adopted, 
bat  that  they  may  be  shunned." 


EXAMINATION    OF     WITNESSES.        1093 

sona,  caeterisque  est  interrogandus,  ut  in  aliquod  re- 
sponsum  incidat,  post  quod  illi  vel  fateri  quae  volumus, 
necesse  sit,  vel  iis  quae  jam  dixerit  repugnare.  Id  si  non 
contingit,  reliquum  erit,  ut  eum  nolle  dicere  manifes- 
tum  sit :  protrahendusque,  ut  in  aliquo  quod  vel  extra 
causam  sit,  deprehendatur :  tenendus,  etiam  dintius,  ut 
omnia,  ac  plura  quam  res  desiderat,  pro  reo  dicen- 
do,    suspectus   judici    fiat;    quo    non    minus    noce- 

bit,  quam    si  vera  in   reum   dixisset" 

'  Primum  est,  nosse  testem.  Nam,  timidus  terreri, 
stultus  decipi,  iracundus  concitari,  ambitiosus  inflari, 
longus  protrahi  potest :  prudens  verd  et  constans,  vel 
tanquam  inimicus  et  pervicax  dimittendus  statim  ;  vel 
non  interrogatione,  sed  brevi  interlocutione  patroni 
refutandus  est ;  aut  aliquo,  si  continget,  urbane  dicto 
refrigerandus ;  aut,  si  quid  in  ejus  vitam  dici  poterit, 
infamia  criminum  destruendus.  Probos  quosdam  et 
verecundos  non  aspere  incessere  profuit ;  nam  saepe, 
qui  adversus  insectantem  pugnassent,  modestia  miti- 
gantur.  Omnis  autem  interrogatio  aut  in  causa  est, 
aut  extra  causam.  In  causa,  patron  us  altius,  et  unde 
nihil  suspecti  sit,  repetita  percontatione,  priora  se- 
quentibus  applicando,  saepe  eo  perducit  homines,  ut 

invitis  quod  prosit  extorqueat Illud    for- 

tuna  interdum  praestat,  ut  aliquid  quod  inter  se  parum 
consentiat,  a  teste  dicatur:  interdum  (quod  sjepius 
evenit,)  ut  testis  testi  diversa  dicat :  acuta  autem  in- 
terrogatio, ad  hoc  quod  casu  fieri  solet,  etiam  ratione 
perducet.  Extra  causam,  quoque,  multa  quae  prosint, 
rogari  solent;  de  vita  testium  aliorum,  de  sua  quisque, 
si  turpitudo,  si  humilitas,  si  amicitia  accusatoris,  si 
inimicitiae  cum  reo  ;  in  quibus  aut  dicant  aliquid  quod 
prosit,  aut  in  mendacio  vel  cupiditate  laedendi  depre- 
hendantur.  Sed  in  primis  interrogatio  debet  esse  cir- 
cumspecta,  quia  multa  contra  patronos  venuste  testis 


1094  FORENSIC    PRACTICE. 

saepe  respondet,  eiquc  prsecique  vulgo  favetur.  Turn 
verbis  quam  maxime  ex  medio  sumptis,  ut,  qui 
rogatur  (is  autem  saepius),  intelligat,  aut  ne  intel- 
ligere  seneget,  quod  interrogantisnon  leve  frigus  est.'" 


1  "  But  in  the  case  of  one  who  will  not  speak  th*;  truth  un- 
less against  his  will,  the  great  happiness  in  an  examiner  is  to 
extort  from  him  what  he  does  not  wish  to  say;  and  this  can 
not  be  done  otherwise  than  by  questions  that  seem  wide  of  the 
matter  in  hand,  for  to  these  he  will  give  such  answers  as  he 
thinks  will  not  hurt  his  party,  and  then,  from  various  particu- 
lars which  he  may  confess,  he  will  be  reduced  to  the  inability 
of  denying  what  he  does  not  wish  to  acknowledge.  For,  as  in 
a  set  speech,  we  commonly  collect  detached  arguments,  which, 
taken  singly,  seem  to  bear  but  lightly  on  the  accused,  but  by 
combination  of  which  we  succeed  in  proving  the  charge,  so  a 
witness  of  this  kind  must  be  questioned  on  many  points  re- 
garding antecedent  and  subsequent  circumstances,  and  con- 
cerning times,  places,  persons,  and  other  subjects,  so  that  he 
may  be  brought  to  give  some  answer,  after  which  he  must 
either  acknowledge  what  we  wish,  or  contradict  what  he  him- 
self has  said.  If  we  do  not  succeed  in  that  object,  it  will  then 
be  manifest  that  he  is  unwilling  to  speak  ;  and  he  must  be  led 
on  to  other  matters,  that  he  may  be  caught  tripping,  if  pos- 
sible, on  some  point,  though  it  be  unconnected  with  the  cause. 
He  may  also  be  detained  an  extraordinary  time,  that  by  saying 
everything,  and  more  than  the  case  requires,  in  favor  of  the 
accused,  he  may  make  himself  suspected  by  the  judge;  and 
he  will  thus  do  no  less  damage  to  the  accused  than  if  he  had 
stated  the  truth  against  him.  ...  In  this  part  of  our 
duty,  the  principal  point  is  to  know  the  witness  well ;  for  if 
he  is  timid,  he  may  be  frightened  ;  if  foolish,  misled  ;  if  iras- 
cible, provoked;  if  vain,  flattered;  if  prolix,  drawn  from  the 
point.  If,  on  the  contrary,  a  witness  is  sensible  and  self- 
possessed,  he  may  be  hastily  dismissed,  as  malicious  and  ob- 
stinate, or  he  may  be  confuted,  not  with  formal  questioning, 
but  with  a  short  address  from  the  defendant's  advocate,  or  he 
may  be  put  out  of  countenance,  if  opportunity  offer,  by  a 
j«st,  or,  it  anything  can  be  said  against  his  moral  character, 
his  conduct  maybe  overthrown  on  infamous  charges.  It  has 
been  advantageous,  on  certain  occasions,  not  to  press  too  se- 
verely on  men  of  probitv  and  ruodestv  ;  for  those  who  would 
have  fought  against  a  determined  assailant,  are  softened  by 


EXAMINATION    OF     WITNESSES.         1095 

654.  In  dealing  with  examination  ex  adverso,  we 
propose  to  consider  separately  the  cases:  i°.  Where 
the  evidence  of  the  witness  is  false  in  toto.  20.  Where 
a  portion  of  it  is  true,  but  a  false  coloring  is  given 
by  the  witness  to  the  whole  transaction  to  which  he 
deposes — either  by  the  suppression  of  some  facts,  or 
the  addition  of  others,  or  both.  1.  Of  the  former  of 
these  the  most  obvious,  though  not  the  most  usual 
case,  is  where  the  answers  extracted  show  that  the  fact 
deposed  to  is  physically  impossible.     A  good  instance 

gentle  treatment.  Every  question  is  either  about  some  point 
within  the  cause,  or  on  some  point  without  it.  On  matters 
within  the  cause,  the  advocate  of  the  accused,  as  we  also  di- 
rected the  accuser,  may  frequently,  by  putting  questions  a 
little  widely,  and  on  subjects  from  which  no  suspicion  will 
arise,  and  by  comparing  previous  with  subsequent  ans\vers4 
reduce  witnesses  to  such  a  dilemma  as  to  extort  from  them, 
against  their  will,  what  may  be  of  service  to  his  own 
cause.  .  .  .  Fortune  sometimes  favors  us  by  causing 
something  to  be  said  by  a  witness  that  is  inconsistent  with 
the  rest  of  his  evidence,  and  sometimes  (as  more  frequently 
happens)  she  makes  one  witness  say  what  is  at  variance  with 
the  evidence  of  another  ;  but  an  ingenious  mode  of  interro- 
gation will  often  lead  methodically  to  that  which  is  so  fre- 
quently the  effect  of  chance.  On  matters  without  the  cause 
also,  many  serviceable  questions  are  often  put  to  a  witness  . 
as  concerning  the  character  of  other  witnesses;  concerning 
his  own  ;  whether  anything  dishonorable  or  mean  can  be  laid 
to  the  charge  of  any  of  them  ;  whether  they  have  had  any 
friendship  with  the  prosecutor,  or  enmity  against  the  defend- 
ant— in  replying  to  which  they  are  likely  to  say  something  of 
which  we  may  take  advantage,  or  may  be  convicted  of  false- 
hood or  malevolence.  But  all  questioning  ought  to  be  ex- 
tremely circumspect,  because  a  witness  often  utters  sharp 
repartees  in  answer  to  the  advocates,  and  is  thus  regarded 
with  a  highly  favorable  feeling  by  the  audience  in  general. 
Questions  should  be  put,  too,  as  far  as  possible,  in  familiar 
language,  that  the  person  under  examination,  who  is  very  fre- 
quently illiterate,  may  clearly  understand,  or  at  least  may  not 
pretend  that  he  does  net  understand — an  artifice  which  throws 
no  small  damp  on  the  spirits  of  the  examiner." 


1096  FORENSIC    PRACTICE. 

i  afforded  by  the  case  of  the  Comte  de  Morangies.  (/) 
"The  question  was,  whether  Monsieur  de  Morangies  had 
received  a  sum  of  three  hundred  thousand  francs,  for 
which  he  had  given  notes  of  hand  to  a  person  called  V^r- 
on.  These  notes  of  hand  he  affirmed  had  been  obtained 
from  him  fraudulently.  Dujonquai,  grandson  of  Veron 
affirmed  that  he  had  himself  on  foot  transported  that  sum 
to  Morangies,  at  his  hotel,  in  thirteen  journeys,  between 
seven  in  the  morning  and  about  one  in  the  afternoon 
making  about  five  hours  and  a  half  or  six  hours.  The 
fact  was  shown  to  be  impossible,  as  follows.  Dujon 
quai  said  that  he  had  divided  the  sum  into  thirteen 
bags,  each  containing  six  hundred  louis,  and  twenty- 
three  other  sacks  of  two  hundred  pounds  ;  twenty-five 
louis  were  given  to  Dujonquai  by  Morangies.  On 
each  occasion  Dujonquai  put  a  sack  of  two  hundred 
louis  in  each  of  his  pockets,  which,  according  to  the 
fashion  of  the  day,  flapped  over  his  thighs,  and  took  a 
sack  of  six  hundred  guineas  under  his  arm.  Accord- 
ing to  the  measured  distance  from  the  alley  in  which 
Dujonquai  lived,  to  the  house  of  Morangies,  the  space 
traversed  by  Dujonquai,  in  his  thirteen  journeys,  would 
amount  to  five  French  leagues  and  a  half;  the  time 
for  each  league  being  calculated  at  an  hour  for  a  per- 
son walking  rather  faster  than  usual.  So  far  there  is 
no  absolute  physical  impossibility,  however  improba 
ble  it  might  be,  that  Dujonquai  should  not  stop  a 
moment  for  refreshment  or  repose ;  but  in  going, 
Dujonquai  had  sixty-three  steps  to  come  down  in  his 
own  house,  and  twenty-seven  to  go  up  at  that  of 
Morangies,  making  in  all  ninety  multiplied  by  twenty- 
six  ;  this  amounted  to  two  thousand  three  hundred 
and  forty  steps.  Now  it  was  known,  that  to  ascend 
the  three  hundred  and  eighty  steps  of  Notre   Dam& 

(i)  We  cite  from  the  Law  Magazine,   N.  S.  vol.  i.  p.  24 


EXAMINATION    OF     WITNESSES.         1097 

from  eight  to  nine  minutes  are  requisite.  Thus  an 
hour  must  be  deducted  from  the  five  or  six  during 
which  the  journeys  were  said  to  have  been  made.  The 
street  of  St.  Jacques,  which  Dujonquai  had  to  ascend, 
is  extremely  steep.  This  would  check  the  speed  of  a 
man  laden  and  encumbered  with  bags  of  gold  under 
ins  arm  and  in  his  pockets.  The  street  is  a  great 
Thoroughfare,  especially  in  the  morning,  for  three  to 
six  hours.  The  obstructions  inevitable  from  this  cir- 
cumstance would  accumulate  considerably ;  half  a 
league  at  least  must  be  added  to  the  five  leagues  and 
a  half,  which,  as  the  crow  flies,  was  the  distance  tra- 
versed. It  happened  that  on  the  very  day  which  Du- 
jonquai fixed  upon  for  his  journeys,  these  ordinary 
obstructions  were  increased,  from  the  removal  by  sixty 
or  eighty  workmen  of  an  enormous  stone  to  St.  Gene- 
vieve, and  the  crowd  attracted  by  the  spectacle.  This 
must,  even  supposing  him  not  to  have  yielded  for  a 
moment  to  the  curiosity  of  seeing  what  attracted 
others,  have  added  seven  or  eight  minutes  to  each  of 
his  walks,  which,  in  the  twenty-six,  would  amount  to 
two  hours  and  a  half.  Both  in  his  own  house  and  that 
of  Morangies  it  must  have  been  necessary  for  Dujon- 
quai to  open  and  shut  the  doors,  to  take  the  sacks,  to 
place  them  in  his  pockets,  to  take  them  out,  to  lay 
them  before  Morangies,  who  he  affirmed,  contrary  to 
all  probability,  counted  the  sacks  during  the  intervals 
of  his  journey,  and  not  in  his  presence.  Time  must 
have  been  requisite  also  to  take  and  read  the  receipts 
given  by  the  count,  during  each  journey.  On  his  re- 
turn home  Dujonquai  must  have  given  them  to  some 
other  person.  Therefoie  reckoning  the  time  required 
to  take  and  lay  down  the  sacks,  to  open  and  shut  the 
doors,  to  receive  and  read  and  deliver  the  acknowledg- 
ments, to  conversations  which  Dujonquai  allowed  he 


1098  FORENSIC    PRACTICE. 

had  with  several  people,  together  with  the  obstacles 
we  have  mentioned,  the  truth  of  Dujonqiiai's  statement 
was  reduced  to  a  physical  impossibility." 

655-  2-  Cases  like  the  above  are,  however,  neces- 
sarily uncommon  ;  in  most  instances  the  exertions  of 
the  advocate  must  be  directed  to  showing  the  impro- 
bability, or  at  most  the  moral  impossibility,  of  the  fact 
deposed.  The  story  of  Susannah  and  the  Elders  in 
the  Apocrypha  affords  a  very  early  and  most  admirable 
example.  The  two  false  witnesses  were  examined  out 
of  the  hearing  of  each  other :  on  being  asked  under 
what  sort  of  tree  the  criminal  act  was  done,  the  first 
said  "a  mastick  tree,"  the  other  "  a  holm  tree."  The 
judgment  of  Lord  Stowell  also  in  Evans  v.  Evans  (i) 
shows  how  a  supposed  transaction  may  be  disproved, 
by  its  inconsistency  with  surrounding  circumstances. 
"  What  had  you  for  supper?"  says  a  modern  jurist.  (/) 
"  To  the  merits  of  the  cause,  the  contents  of  the  sup- 
per were  in  themselves  altogether  irrelevant  and  in- 
different. But  if,  in  speaking  of  a  supper  given  on 
an  important  or  recent  occasion,  six  persons,  all  sup- 
posed to  be  present,  give  a*  different  bill  of  fare,  the 
contrariety  affords  evidence  pretty  satisfactory,  though 
but  of  the  circumstantial  kind,  that  at  least  some  of 
them  were  not  there."  The  most  usual  application  of 
this  is  in  detecting  fabricated  alibis.  These  seldom 
succeed  if  the  witnesses  are  skillfully  cross-examined 
out  of  the  hearing  of  each  other ;  especially  as  courts 
and  juries  are  aware  that  a  false  alibi  is  a  favorite  de- 
fense with  guilty  persons,  and  consequently  listen  with 
suspicion  even  to  a  true  one. 

656.  20.  Falsehood  in  toto  is  far  less  common 
than  misrepresentation.  1.  Under  this  head  comes  exag- 
geration— the   dangers  of  which   have  been  pointed 

(k)  1  Ilagg.  Cons.  Rep.  105.  (/)  2  Benth.  Jud.  Ev.  9. 


EXAMINATION     OF     WITNESSES.         1099 

out  ii  the  Introduction,  {tit)  There  are,  however, 
other  forms.  (11)  E.  g., "  Question—About  what  thick- 
ness was  the  stick  with  which  you  saw  Reus  strike  his 
wife  Defuncta  ?  Answer — About  the  thickness  of  a 
man's  little  finger.  In  truth  it  was  about  the  thick- 
ness of  a  man's  wrist.  Falsehood  in  this  shape  may 
be  termed  falsehood  in  quantity.  Question — With 
what  food  did  the  jailor  Reus  feed  the  prisoner  De- 
functus  ?  Answer — With  sea  biscuit,  in  an  ordinary 
eatable  state.  In  truth,  the  biscuit  was  rotten  and 
mouldy  in  great  part.  Falsehood  in  this  shape  may 
be  termed  falsehood  in  quality." 

657.  2.  Evasion.  Of  the  various  resorts  of 
evasion,  the  most  obvious  and  ordinary  are  generality 
and  indistinctness.  "  Dolosus  versatur  in  gencralibus." 
(0)  "  Dolosus  versatur  in  universalibus."  (ft)  "  Multi- 
plex indistinctum  parit  confusionem."  (q)  Untruth- 
ful witnesses,  as  well  as  unreflecting  persons,  com- 
monly use  words  expressing  complex  ideas,  and 
entangle  facts  with  their  own  conclusions  and  infer- 
ences.  E.  g.,  Question — What  did  A.  B.  (z.  e.,  the 
plaintiff,  defendant,  &c,  as  the  case  may  be)  do?  or 
say?  Answer—"  He  promised,"  "  He  engaged,"  "  He 
authorized,"  "  He  ratified,"  "  He  confessed,"  "  He  ad- 
mitted," "  It  was  understood,"  &c.,&c.,  &c.  The  mode 
of  detection  here,  is  to  elicit  by  repeated  questions 
what  actually  did  take  place,  thus  breaking  up  the 
complex  idea  into  its  component  parts,  and  separating 
the  facts  from  the  inferences.  2.  Another  form  is  that 
of  "  equivocation,"  or  verbal  truth  telling — a  practice 
much  resorted  to  by  witnesses  who  are  regardless  of  their 


(m)  Pt.  1,  §  26.  (/>)  2  Bulst.  226  ;  I  Rol.  157. 

(«)  1  Benth.  Jud.  Ev.  141.  (</)  Hob.    335.     See  2  Benth.   Jud 

(0)  2  Co.  34a  ;  3  Co.  81a  ;  Wing  M.  Ev.  147. 
636 


hoc  FORENSIC    PRACTICE. 

oaths  ;  as  also  by  others  who  delude  themselves  into 
the  belief  that  deception  in  this  shape  is,  in  a  relig- 
ious and  moral  point  of  view,  either  not  criminal,  or 
criminal  in  a  less  degree  than  actual  falsehood.  "  Per- 
juri  sunt  qui,  servatis  verbis  juramenti,  decipiunt  aures 
eorum  qui  accipiunt."  (r) 

658.  The  maxim  "faisus  in  uno,  falsus  in  omni- 
bus," (s)  may  be  pushed  too  far.  It  must  not  be  sup- 
posed that  all  the  untrue  testimony  given  in  courts  of 
justice  proceeds  from  an  intention  to  mistate  or  deceive. 
On  the  contrary,  it  must  usually  arises  from  interest 
or  bias  in  favor  of  one  party,  which  exercises  on  the 
minds  of  the  witnesses  an  influence  of  which  they  are 
unconscious,  and  leads  them  to  give  distorted  accounts 
of  the  matters  to  which  they  depose.  Again,  some 
witnesses  have  a  way  of  compounding  with  their  con- 
sciences— they  will  not  state  positive  falsehood,  but  will 
conceal  the  truth,  or  keep  back  a  portion  of  it;  while 
others,  whose  principles  are  sound  and  whose  testimony 
is  true  in  the  main,  will  lie  deliberately  when  ques- 
tioned on  particular  subjects,  especially  on  some  of  a 
peculiar  and  delicate  nature.  The  mode  of  extracting 
truth  by  cross-examination  is,  however,  pretty  much 
the  same  in  all  cases;  namely,  by  questioning  about 
matters  which  lie  at  a  distance,  and  then  showing  the 
falsehood  of  the  direct  testimony  by  comparing  it  with 
the  facts  elicited. 

659.  Although  in  enumerating  the  means  by  which 
adverse  witnesses  are  to  be  encountered,  Ouintilian 
puts  first,  (7)  "  timidus  (testis)  terreri  potest,"  still,. 
menacing  language  and  austerity  of  demeanor  are  not 

he  most  efficacious  weapons  for  this   purpose.     For, 
although   there   are  cases   in  which  they  may  be  em- 

(r)  3  Inst.  166.  (/)  Supra,  %  653. 

(s)  Broom's  .Mux.  xxviii.  4th  Ed. 


EXAMINATION    OF     WITNESSES.         noi 

ployed  with  advantage,  still  in  the  vast  majority  of  in- 
stances a  mendacious,  an  untruthful,  or  an  evasive  wit- 
ness is  far  more  effectually  dealt  with,  by  keeping  him 
in  good  humor  with  himself,  and  putting  him  off  his 
guard  with  respect  to  the  designs  of  his  interrogator. 
The  terror  of  which  Quintilian  here  speaks,  must  be 
understood  with  reference  to  a  feeling  of  uneasiness 
occasioned  by  remorse  of  conscience,  a  sense  of  shame, 
a  dread  of  disgrace  and  punishment,  and  a  sort  of  un- 
defined apprehension  resulting  from  them  all.  The 
witness  who  is  giving  false  testimony,  rarely  knows 
what  means  the  interrogator  possesses  of  detecting  and 
exposing  him,  far  less  those  which  may  start  up  at  any 
moment  from  the  auditory  at  the  trial.  («)  But  the 
hardened  villian  who  comes  into  the  witness-box  pre- 
pared to  swear  to  unmixed  falsehood,  and  who  perse- 
veres in  that  intention  despite  every  obstacle  and  every 
warning,  is  comparatively  rare.  On  most  minds  the 
sanctions  of  truth  (x)  aie  in  continual,  though  it  may 
be  silent,  operation  ;  and  the  iniquitous  design  of  a  wit- 
ness to  mislead  or  deceive  a  tribunal,  has  frequently 
yielded  to  the  force  of  these  when  judiciously  dis- 
played to  his  mental  vision.  Here,  and  indeed  in  ex- 
aminations ex  adversu  in  general,  the  great  art  is  to 
conceal,  especially  from  the  witness,  the  object  with 
which  the  interrogator's  questions  are  put.  One  mode 
of  accomplishing  this  is  by  questioning  the  witness  on 
indifferent  matters,  in  order  by  diverting  his  attention 
to  cause  him  to  forget  the  answer  which  it  is  desired 
to  make  him  contradict.  In  a  case  of  murder,  to  which 
the  defense  of  insanity  was  set  up,  a  medical  witness, 
called  on  the  part  of  the  accused,  swore  that,  in  his 
judgment,  the  accused  at  the  time  he  killed  the  de- 

(«)See  bk.  i,  pt.  I,  §  mo.  (x)  See    Introd.  pt.  I,  §§  J6-20,  and 

pt.  2,  §§  55-59- 


1 102  FORENSIC    PRACTICE. 

ceased  was  affected  with  a  homicidal  mania,  and  urged 
to  the  act  by  an  irresistible  impulse.  The  judge,  dis- 
satisfied with  this,  first  put  to  the  witness  some  ques- 
tions on  other  subjects,  and  then  asked  him,  "  Do  you 
think  the  accused  would  have  acted  as  he  did,  if  a  po- 
liceman had  been  present  ?"  to  which  "the  witness  at 
once  answered  in  the  negative  ;  on  which  the  judge 
remarked,  "  Your  definition  of  irresistible  impulse  then 
must  be,  an  impulse  irresistible  at  all  times  except  when 
a  policeman  is  present." 

660.  But  if  cross-examination  is  a  powerful  engine, 
it  is  likewise  an  extremely  dangerous  one,  and  often  re- 
coils fearfully,  even  on  those  who  know  how  to  use  it. 
The  young  advocate  should  reflect  that,  if  the  trans- 
action to  which  a  witness  speaks  really  occurred,  so 
constant  is  the  operation  of  the  natural  sanction  of 
truth,  (y)  that  he  is  almost  sure  to  recollect  every  ma- 
terial circumstance  by  which  it  was  accompanied ;  and 
the  more  his  memory  is  probed  on  the  subject,  the 
more  of  these  circumstances  will  come  to  light,  thus 
corroborating  instead  of  shaking  his  testimony.  And 
forgetfulness  on  the  part  of  witnesses,  of  immaterial 
circumstances  not  likely  to  attract  attention,  or  even 
slight  decrepancies  in  their  testimonies  respecting 
them,  so  far  from  impeaching  their  credit,  often  rather 
confirms  it.  Nothing  can  be  more  suspicious  than  a 
long  story,  told  by  a  number  of  witnesses  who  agree 
down  to  the  minutest  details.  Hence  it  is  a  well- 
known  rule,  that  a  cross-examining  advocate  ought 
not,  in  general,  to  ask  questions  the  answers  to  which, 
if  unfavorable,  will  be  conclusive  against  him  ;  as.  for 
instance,  in  a  case  turning  on  identity,  whether  the 
witness  is  sure,  or  will  swear,  that  the  accused  is   'he 

OO  Introd.  pt.  1,  §  16. 


EXAMINATION    OF     WITNESSES.        it  03 

man  ol  whom  he  is  speaking.  The  judicious  course  is 
to  question  him  as  to  surrounding-  or  even  remote 
matters;  his  answers  respecting  which  may  show  that, 
in  the  testimony  he  gave  in  the  first  instance,  he  either 
spoke  falsely  or  was  mistaken.  Under  certain  circum- 
stances, however,  perilous  questions  must  be  risked ; 
especially  where  a  favorable  answer  would  be  very  ad- 
vantageous, and  things  already  press  so  hard  against 
the  cause  of  the  cross-examining  advocate,  that  it 
could  scarcely  be  injured  by  an  unfavorable  one. 

661.  The  words  "longus  (testis)  protrahi  (po- 
test)," (2)  are  omitted  in  some  copies  of  Quintilian 
but  are  retained  in  the  best  editions,  and  have  every 
appearance  of  genuineness.  Their  meaning  is,  that  a 
witness  who,  either  from  self-importance,  a  desire  to 
benefit  the  cause  of  the  opposite  party,  or  any  other 
reason,  displays  a  loquacious  propensity,  should  be  en- 
couraged to  talk,  in  order  that  he  may  either  fall  into 
some  contradiction,  or  let  drop  something  that  may 
be  serviceable  to  the  party  interrogating.  "Of  this 
damning  kind,"  observes  the  author  of  a  judicious 
pamphlet,  (a)  "  are  witnesses  who  prove  too  much  ; 
for  instance,  that  a  horse  is  the  better  for  what  the 
consent  of  mankind  calls  a  blemish  or  a  vice.  The 
advocate  on  the  other  side  never  desires  stronger  evi- 
dence than  that  of  a  witness  of  this  sort :  he  leads  th 

(2)  Supra,  §  653.  having    first    taken    care  to    ascertain 

(a)  Hints  to  Witnesses  in  Courts  of  that  none  of  his  hearers  had  witnessed 

Justice,  by  a  Barrister  (Baron   Field).  a  military  flogging,  assured  them,  with 

London.     1S15.      We    cite   from    the  great  earnestness,  that  there  was  noth- 

Law  Mag.  vol.  25,  p.  361.    When  cor-  ing  in  it  ;  he  had  ,-een  a  soldier  receive 

poral   punishment  in  the  army  excited  nine  hundred  and  fifty  Lishes,  and  not 

so  much  interest  some  time  since— one  mind  it  in  the  least.  It  never  occurred 

party  denouncing  it  as  useless  cruelty,  to    this    zealous    person,    that    if   that 

and  the   other  insisting  on  it  as  indis-  were   true,   the  usual    punishments   of 

pensable    to    the     government    of   an  50,  100,  or  350  lashes,  could    not  be  a 

army — the   author  met  an  officer  who  very  effective  means  of  enforcing  mili- 

warmly   defended    the    practice  ;  and,  tary  discipline. 


uo4  FORENSIC    PRACTICE. 

witness  on  from  one  extravagant  assertion  in  his 
friend's  behalf  to  another  ;  and,  instead  of  desiring  him 
to  mitigate,  presses  him  to  aggravate,  his  partiality 
till  at  last  he  leaves  him  in  the  mire  of  some  monstrous 
contradiction  to  the  common  sense  and  experience  of 
the  court  and  jury ;  and  this  the  advocate  knows  will 
deprive  his  whole  testimony  of  credit  in  their  minds 
662.  The  course  of  cross-examination  to  be  pur 
sued  in  each  particular  cause,  should  be  subordinate 
to  the  plan  which  the  advocate  has  formed  in  his  mind 
for  the  conduct  of  it.  Writers  on  the  art  of  war,  to 
which  forensic  battles  have  so  often  been  compared, 
lay  down  as  a  principle,  that  every  campaign  should 
be  conducted  with  some  definite  object  in  view;  or, 
as  they  express  it,  that  no  army  should  be  without  its 
line  of  operation.  There  is,  however,  this  difference 
that  the  line  of  operation  of  an  army  can 
seldom  be  changed  after  fighting  has  begun, 
whereas  matters  transpiring  in  the  course  of 
a  trial,  frequently  disclose  grounds  of  attack  or  de- 
fense imperceptible  at  its  outset;  the  seizing  on  which 
and  adapting  them  to  the  actual  state  of  things,  re- 
quires that  "  ingenio  veloci  ac  mobili,  animo  praesenti 
et  acri,  which  Quintilian  in  another  place  pronounces 
so  essential  to  an  advocate,  (b)  But  the  analogy  is 
very  close  in  one  respect.  The  advocate,  like  the 
general,  should  always  consider  whether  he  is  the  at 
tacking  or  defending  party,  and  beware  of  undertak- 
ing the  offensive,  or  of  assuming  the  burden  of  proof, 
unless  he  is  strong  enough  to  do  so.  The  violation  of 
this  principle  is  a  very  common,  because  very  natural, 
fault  in  the  defense  of  criminal  cases.  Oftentimes  the 
only  chance  of  escape  is  that  the  proof  against  the 

(6)  Quintil.  Inst.  Orat.  lib.  6,  c.  4. 


EX  A  MINA  TION    OF    WITNESSES.        1 1 05 

accused  may  fall  short,  and  all  the  energies  of  his  ad- 
vocate should  be  directed  to  show  that  it  does.  But 
if,  abandoning  this  defensive  attitude,  he  assumes  the 
offensive — talks  of  the  accused  as  an  innocent  man 
whom  it  is  sought  to  oppress;  denounces  the  prosecu- 
tion as  founded  in  spite,  and  the  evidence  by  which  it 
is  supported  as  based  on  perjury;  and  fails,  as  without 
evidence  or  facts  he  must  fail,  in  convincing  the  tribu- 
nal of  this,  the  condemnation  of  his  client  follows  as 
a  matter  of  course. 

663.  The  facuUy  of  interrogating  witnesses  with 
effect,  is  unquestionably  one  of  the  arcana  of  the  legal 
profession,  and,  in  most  instances  at  least,  can  only  be 
attained  after  years  of  forensic  experience.  Cross-ex- 
amination or  examination  ex  adverso.  is  the  most 
effective  of  all  means  for  extracting  truth  ;  much  per- 
jured testimony  is  prevented  by  the  dread  of  it ;  and 
few  pleasures  exceed  that  afforded,  by  witnessing  its 
successful  application  in  the  detection  of  guilt  or  the 
vindication  of  innocence.  In  direct  examination, 
although  mediocrity  is  more  easily  attainable,  it  may 
be  a  question  whether  the  highest  degree  of  excel- 
lence is  not  even  still  more  rare.  For  it  requires  men- 
tal powers  of  no  inferior  order  so  to  interrogate 
each  witness,  whether  learned  or  unlearned,  intelligent 
or  dull,  matter  of  fact  or  imaginative,  single-minded 
or  designing,  as  to  bring  his  story  before  the  tribunal 
in  the  most  natural,  comprehensible,  and  effective 
form.  Having  in  the  present  chapter  endeavored  to 
illustrate  this  important  subject,  we  can  not  dismiss  it 
without  a  caution.  Maxims  of  every  kind  should  be 
to  us  as  guides — to  shorten,  as  has  been  well  observed 
the  turnings  and  windings  of  experience — not  as  stern 
masters  to  stifle  the  inspirations  of  genius;  and  the 
greatest  advocate  is  he  who,  perfectly  conversant  with 


no6  FORENSIC    PRACTICE. 

the  established  rules  of  his  art,  knows  when   to  break 
them,  alike  with  safety  and  advantage. 

1  We  subjoin  David  Paul  Brown's  "  Golden  Rules  for  the 
Examination  of  Witnesses": 

"First,  as  to  your  own  witaiesses:  I.  If  they  are  bold,  and 
may  injure  your  cause  by  pertness  or  forwardness,  observe  a 
gravity  and  ceremony  of  manner  toward  them,  which  may  be 
calculated  to  repress  their  assurance.  II.  If  they  are  alarmed 
or  diffident,  and  their  thoughts  are  evidently  scattered,  com- 
mence your  examination  with  matters  of  a  familiar  character, 
remotely  connected  with  the  subject  of  their  alarm,  or  the 
matter  in  issue,  as  for  instance — Where  do  you  live  ?  Do  you 
know  the  parties?  How  long  have  you  known  them?  &c. 
And  when  you  have  restored  them  to  their  composure,  and 
the  mind  has  regained  its  equilibrium,  proceed  to  the  more 
essential  features  of  the  case,  being  careful  to  be  mild  and  dis- 
tinct in  your  approaches,  lest  you  may  again  trouble  the  foun- 
tain from  which  you  are  to  drink.  III.  If  the  evidence  of 
your  own  witnesses  be  unfavorable  to  you  (which  should 
always  be  carefully  guarded  against),  exhibit  no  want  of  com- 
posure;  for  there  are  many  minds  that  form  opinions  of  the 
nature  or  character  of  testimony  chiefly  from  the  effect  which 
it  may  appear  to  produce  upon  the  counsel.  IV.  If  you  per- 
ceive that  the  mind  of  the  witness  is  imbued  with  prejudices 
against  your  client,  hope  but  little  from  such  a  quarter;  un- 
less there  be  some  facts  which  are  essential  to  your  client's 
protection,  and  which  that  witness  alone  can  prove,  either  do 
not  call  him,  or  get  rid  of  him  as  soon  as  possible.  If  the  op- 
posite counsel  perceive  the  bias  to  which  I  have  referred,  he 
may  employ  it  to  your  ruin.  In  judicial  inquiries,  of  all  pos- 
sible evils,  the  worst  and  the  least  to  be  resisted  is  an  enemy 
in  the  disguise  of  a  friend.  You  can  not  impeach  him — you 
can  not  cross-examine  him — you  can  not  disarm  him — you 
can  not  indirectly,  even,  assail  him  ;  and  if  you  exercise  the 
only  privilege  that  is  left  to  you,  and  call  other  witnesses  for 
the  purposes  of  explanation,  you  must  bear  in  mind,  that  in- 
stead of  carrying  the  war  into  the  enemy's  country,  the 
struggle  is  still  between  sections  of  your  own  forces,  and  in 
the  very  heart,  oerhaps,  of  your  own  camp.  Avoid  this,  by 
all  means.  V.  Never  call  a  witness  whom  your  adversary 
will  be  compelled  to  call.  This  will  afford  you  the  privilege 
of  cross-examination — take  from  your  opponent  the  same 
privilege  it  thus  gives  to  you — and,  in  addition   thereto    not 


EXAMINATION    OF     WITNESSES.         1107 

only  render  everything  unfavorable  said  by  the  witness  doubly 
operative  against  the  party  calling  him,  but  also  deprive  that 
party  of  the  power  of  counteracting  the  effect  of  the  testi- 
mony. VI.  Never  ask  a  question  without  an  object,  nor  with- 
out being  able  to  connect  that  object  with  the  case,  if  objected 
to  as  irrelative.  VII.  Be  careful  not  to  put  your  question  in 
such  a  shape  that,  if  opposed  for  informality,  you  can  not  sus- 
tain it,  or,  at  all  events,  produce  strong  reason  in  its  support. 
Frequent  failures  in  the  discussions  of  points  of  evidence  en- 
feeble your  strength  in  the  estimation  of  the  jury,  and  greatly 
impair  your  hopes  in  the  final  result.  VIII.  Never  object  to 
a  question  from  your  adversary  without  being  able  and  dis- 
posed to  enforce  the  objection.  Nothing  is  so  monstrous  as 
to  be  constantly  making  and  withdrawing  objections  ;  it 
either  indicates  a  want  of  correct  perception  in  making  them, 
or  a  deficiency  of  real  or  of  moral  courage  in  not  making 
them  good.  IX.  Speak  to  your  witness  clearly  and  distinctly, 
as  if  you  were  awake  and  engaged  in  a  matter  of  interest ; 
and  make  him  also  speak  distinctly  and  to  your  question. 
How  can  it  be  supposed  that  the  court  and  jury  will  be  in- 
clined to  listen,  when  the  only  struggle  seems  to  be  whether 
the  counsel  of  the  witness  shall  first  go  to  sleep?  X.  Modu- 
late your  voice  as  circumstances  may  direct — "  Inspire  the 
fearful  and  repress  the  bold."  XI.  Never  begin  before  you 
are  ready  ;  and  always  finish  when  you  have  done.  In  other 
words,  do  not  question  for  question's  sake,  but  for  an  answer. 
Cross-Examination  :  I.  Except  in  indifferent  matters,  never 
take  your  eye  from  that  of  the  witness;  this  is  a  channel  of 
communication  from  mind  to  mind,  the  loss  of  which  nothing 
can  compensate — 

'  Truth,  falsehood,  hatred,  anger,  scorn,  despair, 
And  all  the  passions — all  the  soul  is  there.' 

II.  Be  not  regardless,  either,  of  the  voice  of  the  witness;  next 
to  the  eye,  this  is  perhaps  the  best  interpreter  of  his  mind 
The  very  design  to  screen  conscience  from  crime — the  mental 
reservation  of  the  witness — is  often  manifested  in  the  tone  or 
accent  or  emphasis  of  the  voice.  For  instance,  it  becoming 
important  to  know  that  the  witness  was  at  the  corner  of  Sixth 
and  Chestnut  streets  at  a  certain  time,  the  question  is  asked — 
Were  you  at  the  corner  of  Sixth  and  Chestnut  streets,  at  six 
o'clock  ?  .  A  frank  witness  would  answer,  perhaps — I  was 
near  there.  But  a  witness  who  had  been  there,  desirous  to 
conceal  the  fact,  and  to  defeat  your  object,  speaking  to  the 
letter    rather   tiian   the  spirit    of  the    inquiry,    answers — No; 


no8  FORENSIC    PRACTICE. 

although  lie  may  have  been  within  a  stone's  throw  of  the 
place,  or  at  the  very  place,  within  ten  minutes  of  the  time. 
The  common  answer  of  such  a  witness  would  be — I  was  not 
at  the  comer,  at  six  o'clock.  Emphasis  upon  both  words  plainly 
implies  a  mental  evasion  or  equivocation,  and  gives  rise,  with 
a  skillful  examiner,  to  the  question — At  what  hour  were  you 
at  the  corner,  or  at  what  place  were  you  at  six  o'clock  ?  And 
in  nine  instances  out  of  ten,  it  will  appear  that  the  witness  was 
at  the  place  about  the  time,  or  at  the  time  about  the  place. 
There  is  no  scope  for  further  illustrations — but  be  watchful,  I 
say,   of  the   voice,  and   the  principle  may  be  easily  applied. 

III.  Be  mild  with  the  mild — shrewd  with  the  crafty — confiding 
with  the  honest — merciful  to  the  young,  the  frail,  or  the  fear- 
ful: — rough  to  the  ruffian,  and  a  thunderbolt  to  the  liar.  But 
in  all  this,  never  be  unmindful  of  your  own  dignity.  Bring 
to  bear  all  the  powers  of  your  mind — not  that  you  may  shine, 
but  that   virtue  may   triumph,  and  your   cause   may   prosper. 

IV.  In    a   criminal,  especially   in   a  capital,   case,   so  long  as 
your  cause  stands  well,  ask  but  few  questions  ;  and  be  certain 
never  to  ask   any,  the  answer  to  which,  if  against  you,   may 
destroy   your  client,  unless  you    know   the  witness   perfectly 
well,  and  know  that  his  answer  will  be  favorable  equally  well ; 
or  unless   you  be  prepared   with   testimony  to  destroy  him,  if 
he   play   traitor  to  the  truth   and   your   expectations.     V.  An 
equivocal  question  is  almost  as  much  to  be  avoided  and  con- 
demned as  an   equivocal   answer ;  and  it  always  leads  to,  or 
excuses,  an  equivocal  answer.     Singleness  of  purpose,  clearly 
expressed,  is  the  best  trait   in  the  examination   of  witnesses, 
whether  they  be  honest  or  the  reverse.      Falsehood  is  not  de- 
tected by  cunning,  but  by  the  light  of  truth,  or  if  by  cunning, 
it   is   the  cunning    of   the  witness,   and   not    of   the  counsel. 
VI.   If  the  witness   determine  to  be  witty  or  refractory    with 
you,  you  had  better  settle  that  account  with  him  at  first,  or  its 
items  will  increase  with  the  examination.      Let  him   have   an 
opportunity  of  satisfying  himself  either  that  he  has  mistaken 
your  power   or  his   own.      But  in  any   result,  be  careful    that 
you  do  not  lose  vour  temper;  anger  is  always   either  the  pre- 
cursor or  evidence  of  assured  defeat  in  every  intellectual  con- 
vict.     VII.   Like  a  skillful   chess-player,   in   every   move,  fix 
your  mind  upon  the  combinations  and  relations  of  the  game; 
partial  and  temporary  success  may  otherwise  end  in  total  and 
remediless   defeat.     VIII.   Never  undervalue  your,  adversary, 
but   stand   steadily  upon  your  guard;  a  random  blow  may  be 
just  as  fata]  as  though  it  were   directed  by  the    most  consum- 
mate s   ill  ;  the  negligence  of  one  often  cures,  and  sometimes 


EXAMINATION    OF     WITNESSES.         1109 

renders  effective,  the  blunders  of  another.  IX.  Be  respectful 
to  the  court  and  to  the  jury — kind  to  your  colleague — civil  to 
youi  antagonist;  but  never  sacrifice  the  slightest  principle  of 
duty  to  an  overweening  deference  toward  either." 

In  the  "  Code  of  Gentoo  Laws,  or  Ordinations  of  the  Pun- 
dits," referred  to,  ante,  p.  S36,  note  1,  we  find  regulations  con- 
cerning the  etiquette  of  examining  witnesses  : 

"  He  who  means  to  question  a  witness,  having  bathed  him- 
self, shall  put  his  questions  in  the  tenth  ghurrie  of  the  day; 
the  witness  also,  having  bathed  himself,  and  turned  his  face 
towards  the  eastern  or  northern  quarter,  shall  deliver  his  evi- 
dence:  the  examiner  shall  ask  the  witness  (if  a  Brahmin)  with 
civility  and  respect,  saying,  'Explain  to  me  what  knowledge 
you  have  of  this  affair ' ;  and  to  a  Chehteree,  he  shall  say, 
1  What  do  you  know  of  this  affair  ?  speak  the  truth  ' ;  and  to 
a  Bice,  he  shall  say,  '  What  do  you  know  of  this  affair  ?  if  you 
give  false  evidence,  whatever  crime  there  is  in  stealing  kine, 
or  gold,  or  paddee,  or  wheat,  or  gram,  or  barley,  or  mustard, 
and  such  kind  of  grain,  shall  be  accounted  to  you  ' ;  and  to  a 
Sooder,  he  shall  say,  'What  do  you  know  of  this  affair? 
speak  ;  if  your  evidence  is  false,  whatever  crime  is  the 
greatest  in  the  world,  that  crime  shall  be  accounted  to  you.' 

And  see  also  Mr.  Reed's  valuable  work,  "  Practical 
Suggestions  for  the  Management  of  Lawsuits,"  &c,  N.  Y., 
Lockcroft  &  Co.,  1875  ;  Cox's  "  The  Advocate:  His  Training, 
Practice,  and  Duties  ;  Dr.  Wan-en's  "  Law  Studies,"  &c. ; 
above  all,  the  seventh  chapter  of  the  fifth  book  of  Quintilian  s 
Institutes  of  Oratory,  "  Of  Witnesses." 


END    OF    VOLUME    IL 


TABLE    OF    CASES. 


Abbott  v.  Plumbe,  ii.,  906. 
Ahignye  v.  Clifton,  L,  284,  285. 
Adani9  v.  Canon,  i.,  168. 

v.  Lloyd,   i.,    189,   191,    ii., 

1054. 
Addington  v.  Clode,  ii.,  653. 
Alderson  v.  Clay,  ii.,  683. 
Aldous  v.  Cornwell,  i.,  432. 
Allesbrook    v.  Roach,  i.,  465,  467, 

468. 
Allport  v.  Meek,  L,  458. 
Alsager  v.  Close,  ii.,  684. 
Alsop  v.  Bowtrell,  i.,  284. 
Amos  v.  Hughes,  i.,  498,  503. 
Anderson  v.  Weston,  ii.,  681,  685. 
Andrews  v.  Hailes,  ii.,  718. 
Annesley  v.  The  Earl  of  Anglesea, 

ii.,  539,  573,  788. 
Anon.,  i.,  162,  168,  262,   272,  275, 

861,  ii.,  636,  691,  702,  715,  820. 
Ansell  v.  Baker,  ii.,  904. 
Apothecaries  Co.  (The)  v.  Bentley, 

i.,  508,  509. 
Appeney  v.  Gill,  i.,  675. 
Aram's  (Eugene;  case,  i.,  619. 
Aranguren  v.  Scholfield,  ii.,  806. 
Armistead  v.  Wilde,  ii.,  720. 
Armory®.  Delamirie,  ii.,  760. 
Arnold  v.  Beaker, 
Ashby  v.  Bates,  ii.,  1071. 

v.  White,  i.,  125. 
Ashley  v.  Freckleton,  i.,  660. 
Atalanta  (TLiej  case  of,  ii.,  709. 


Atchley».  Sprigg,  i.,  625. 
Atkins  v.  Hoke,  ii.,  1031. 

v.  Warrington,  i.,  692. 
Atkinson  v.  Fosbroke,  ii.,  1055. 

v.  Pocock,  ii.,  1086. 
Atlee  v.  Backhouse,  i.,  429. 
Att.  Gen.  v.  Bryant,  ii.,  980. 

v.  Chambers,  i.,  714. 

v.  Davison,  i.,  139. 

v.    Hitchcock,    i.,    49,    ii., 
1078,  1080. 

v.  Kohler,  ii.,  815. 

v.  Le  Merchant,  L,  134. 

r   Parnther,  ii.,  689. 

v.  Radloff,  i.,  279,  286,  486 

v.  Rogers,  i.,  117. 

v.  The  St.    Cross  Hospitt* 
ii.,  674. 

v.  The   Dean    of   Windsoi 
ii.,  675,  702. 
Anpert  v.  Walsh,  ii.,  615. 
Audley's  (Lord)  case,  i.,  272. 
Australasia  (Bank  of)  v.  Nias,  h., 

1006. 
Avery  v.  Bowden,  L,  112. 

Babbage  v.  Babbage,  i.,  283. 
Baildon  v.  Walton,  ii.,  896. 
Bailey  v.  Appleyard,  ii.,  652. 

v.  Hammond,  ii.,  693. 

v.  Sewell,  ii.,   652. 
Baker  v.  Batt,  i.,  499. 

v.  Dening,  i.,  454. 


1 1 12 


TABLE     OF    CASES. 


Ball  v.  Taylor,  ii.,  G37. 
Ballard  v.  Dyson,  ii.,  717. 
Balston  v.  Bensted   ii.    655,  657. 
BarntiYld  o.  Massey,  i.,  485,  487. 
Banbury  Peerage  case,  ii.,  620. 
Band  on  'Earl   of)  v.     Becker,    ii., 

1006. 
Bank    Prosecutions,  (cases  of),    L, 

44:;. 
Banks?;.  Banus,  i.,  139. 

v.   Goodfellow,  L,    232,  ii., 

689. 
Barbat®.    Allen,  i.,  138,   139,  140, 

271,  276. 
Barber  v.  Whiteley,  ii.,  676. 
Barkers.  Dixie,  i.,  140. 
v.  Keete,  ii.,  638. 
v.  Ray,  ii.,  704. 
Barnes  v.  Trompowsky,  ii.,  906. 
Barnett  v.  Guildford  (Earl  of),  ii., 

564.  505. 
Barraclough   v.    Johnson,  ii.,  670, 

671. 
Barry  ».  Butlin,  i.,  498. 
Bartholomew  v.  George  5.,  226., 
Bartlctt  v.  Downes,  ii.,  679. 

■   v.  Smith,  i.,  113,  204. 
Batchelor   v.    Honey  wood,  i.,  454. 
Bates  v.  Townley,  ii.,  910. 
Bauerman  v.  Radenius,  i  ,  160. 
Baxter's  (Richard)  case,  i.,  481. 
Baxter  v.  Taylor,  ii.,  671. 
Bayley  v.  Drever,  ii.,  676. 
Bayly  v.  Booine.  i.,  180. 
Bealey  v.   Shaw,  ii.,  655,  657,  658. 
Beamish  v.  Beamisli,  ii.,  624. 
Beaufort  (Duke   of)  v.  Crawshay, 

i.  115. 
Beaumont  v.  Perkins,  i.,  470. 
Beckwith  v.  Sydebotham,  ii.,  868. 
Bedford  Charity,  case   of,  ii.,  627. 
Bedle  v.  Beard,  ii.,  659. 
Beech  v.  Jones,  i.,  423. 
Belcher  v.  MTntosh.  i.,  498. 
Bellamy's  case,  i.,  421. 
Bempde  v.  Johnson,  ii.,  710. 


Bennet  v.  Hartford   (Hund-ed  of) 

L,  296. 
Bennett  v.  Griffiths,  ii.,  1052. 
Bennion  v.  Davison,  ii.,  926. 
Bennison  v.  Jewison,  i.,  113. 
Benson  v.  Olive,  ii.,  092. 
Bent  v.  Baker,  i.,  175,  216,  217. 
Berridge  v.  Warde,  ii.,  715. 
Berry  and  Good  man's  case,  ii.,  715. 
Berryman  v.  Wise,  ii.,  631,  632. 
Berty  v.  Dormer,  i.,  502,  503. 
Bessey  v.  Wyndham,  ii.,  1086. 
Beverley's  case,  i.,  308. 
Biccard  v.  Shepherd,  ii.,  712. 
Biddulph  ».  Ather,  ii.,  653. 
Bingham  v.  Stanley,  ii.,  926. 
Bird  v.  Brown,  ii.,  565. 

v.  Higginson,  ii.,  1071. 
Birt  v.  Barlow,  ii.,  624. 
Blackborne  v.  Blaekborne,  i.,  282, 
Blackford  v.  Christian,  i.,  232. 
Blackham's  case,  ii.,  998. 
Blake  v.  Usborne,  ii.,  659. 
Blanchett  v.  Foster,  ii.,  702. 
Blandy's  (Mary)  case,  ii.,  7S8. 
Blatch  v.  Archur,  ii.,  619. 
Blewett   v.    Tregonning,   ii.,   648, 

661,  606. 
Bloxara  v.  Elsee,  ii.,  903. 
Bluck  v.  Gompertz,  ii.,  1051 
Blundell  v.  Catterall,  ii.,  714. 
Blurton  v.  Toon,  i.,  415. 
Boane'scase,  ii.,  970. 
Board  man  v.  Boardman,  i.,  283. 
Bode's  (Baron  de)  case,  ii.,  875. 
Boileau  v.  Rutlin,  ii.,  904,  926. 
Bond  v.  Seawell,  ii.,  638. 
Bouzi  v.  Stewart,  ii.,  926. 
Booms  (The)  case  of,  ii.,  790. 
Booth  v.  Millns,  ii.,  1071. 
Boulter  v.  Peplow,  ii.,  904. 
Bowman  v.  Bowman,  ii.,  1029. 
Boyle  v.  Tamlyn,  ii.,  676. 

v.     Wiseman,    i.,     113,    ii. 

620,  898. 
Bradford's  (Jonathan),  case  i.,  35U. 


TABLE     OF    CASES. 


ii  13 


Bradlaugh  v.  De  Rin,  i.,  434. 
Brady  v.  Cubitt,  ii.,  597. 
Branford  v.  Freeman,  ii.,  1071. 
Breckon  v.  Smith,  ii.,  910. 
Bree«>.  Beck,  ii.,  648,  652. 
Brembridge  v.  Osborn,  ii.,  691. 
Breniner  v.  Hull,  ii.,  854. 
Breton  v.  Cope,  ii.,  615. 
Bridge  man  v.  Green,  i 
Bridgewater   Trustees 


v.   Booth, 


ii.,  715. 


Bright  «.  Walker,   ii.,    654,    661, 

666. 
Brighton  Ey.  Co.    v.    Fairclough, 


ii„  638. 


Bristow  v.  Sequeville,  ii.,  S75. 

v.  Wright,  i.,  524. 
British  Museum  v.  Finnis,  ii.,  670. 
Broad  v.  Pitt,  ii.,  990. 
Bromage  v.  Rice,  i.,  458. 
Brookbard  c.Woodley,  i.,  457. 
Brouo'hton  v.  Randall,  ii.,  698. 
Brown  v.  Broun,  ii.,  684. 
v.  Foster,  ii.,  986. 
i).  Woodman,  ii.,  820. 
Brownsword     v.      Edwards,     ii.. 

1006. 
Bruce  v.  Bruce,  ii.,  710. 

v.  Nisolopulo,  ii.,  824. 
Brune   v.  Thompson,  ii.,   594,  659. 
Brunswick  (Duke  of)  v.  The  King 

of  Hanover,  ii.,  708. 
Bryan  v.  Whistler,  ii.,  659. 
Bryant  v.  Foot,  ii.,  597,  653. 
Bryce  (In  the.  goods  of)  i.,  454. 
Brydges  v.  Fisher,  i.,  57. 
Buckmaster    v.     Meiklejohn,    ii., 

926. 
Burdock's  case,  ii.,  778. 
Burgess  v.  Gray,  i.,  39. 
Burgesses  case,  ii.,  1061. 
Burling  v.  Paterson,  ii.,  637. 
Bnron  v.  Den  man,  ii.,  565. 
Burr  v.  Harper,  i.,  456,   457,    467, 

468. 
Burrell  v.  Nicholson,  ii.,  1071. 


Burton  v.  Plummer,  i..  423. 

v.  Thompson,    ii.,  595 
Bury  v.  Blogg.  i.,  524. 
v.  Pope,  ii.,  649. 
Bury  St.    Edmond's  Witches  (case 

of),  ii.,  909. 
Bushell's  case,  i.,  179. 
Butler  and  Baker's   case,  ii.,  562, 

566. 
Butler  v.  Ford,  ii.,  633. 
v.  Moore,  ii.,  990. 
v.   Lord    Mountgarrett,  ii., 
684,  845. 

■v.    Lord  Portarlington,    ii., 
683. 
Buxton  v.  Cornish,  i.,  421. 
Byerly  v.  Windus,  ii.,  659. 
Byrne  v.  Boadle,  ii.,  578. 

Cadge  (In  the  goods  of),  433. 
Calder  v.  Rutherford,  i.,  506. 
Call  v.  Dunning,  ii.,  906. 
Calvin's  case,  L,  101,  125,  209,211. 

ii.,  868. 
Campbell  v.  Wilson,  ii.,  655. 
Canham  v.  Fisk,  ii.,  646. 
Canning's  (Eliz.)  casr,  i.,   173,  ii., 

939,  941. 
Card  v.  Case,  i.,  137. 
Carlisle  (Mayor,  &c.  of)  v.  Graham, 

ii.,  716. 
Carmarthen  and   Cardigan  Ry.  Co. 

v.  Manchester  and  Milford   Ry. 

Co.,  ii.,  858. 
Carnarvon    (Earl   of)  «.  Villeboia, 

ii.,  621. 
Carpenter  v.  Buller,  ii.,  929. 
Carpenters'    Co.    ».    Hayward,    i.. 

112. 
Carratt  v.  Morley,  ii.,  636. 
( iarsewell's  case,  i.,  472. 
( larter  /•.  Abbot,  ii.,  686. 

v.  James,  ii.,  920,  998. 
v.  Jones,  ii.,  1009,  1070. 
v.  Murcott,  ii.,  715. 
v.  Pryke,  i.,  482. 


1 1 14 


TABLE     OF    CASES. 


Cartwright  0.  Green,  i.,  189. 

Cary  ®.  Gerish,  ii.,  C15. 
v.  Pitt,  i.,  454,  4G9. 

Cashill®.  Wright,  ii.,  720. 

Castelli  v.  Groom,  i.,  57. 

Castrique  v.  Imrie,  ii.,  1003,  1004. 

Cate's  (Anne)  case,  ii.,  968,  970. 

Catherwood  v.  Caslon,  ii.,  G24. 

Caunce  0.  Rigby,  ii.,  635. 

Chad  v.  Tilsed,  ii.,  659. 

Champuey's  case,  ii.,  1022,  1024. 

Chandler  v.  Fforne,  ii.,  1067. 

Chapman  v.  Beard,  ii.,  676. 
Ion  son,  ii.,  648. 
0.  Smith,  ii.,  648. 

Charnock's  ease,  i.,  171. 

Charnock  0.  Dewings,  ii.,  1067. 
.  Lainley,  ii.,  1050. 

Chitty's  (Sellapa)  case,  i.,  356. 

Clark  v.  Periam,i.,484,  485,  ii.,618. 

Clarke  0.  Hart,  ii.,  932r  933. 

Ciay  0.  Crowe,  ii.,  806. 

Clayton  0.  Corby,  ii.  717. 

Cleave?;.  Jones,  i.,  113,  205,  ii., 985. 
Clegg®.  Levy,  i  ,  33. 
Clermont  0.  Tullidge,  i.,  465,  468. 
Clipping  (case  of),  ii.,  1032. 
Closmadeuc  v.  Carrel,  i.,  434. 
Clunnes  0.  Pezzey,  i.,  497. 
Cobbett®.  Hudson,!,  292,  ii.,  1067. 
Cockman  v.  Farrer,  ii.,  688. 
Codlings.  Johnson,  ii.,654. 
Coggs  ».  Bernard,  ii.,  720. 
Cohen  v.  Hinckley,  ii.,  713. 
Colberg  (In  the  goods  of;,  ii.,  684. 
Coleman's  (Rich.  |  case,  ii.,  972. 
Collin's  case,  i.,  287. 
Collins  0.  Blantern,  ii.,  939. 
•  v.  Cave,  ii.,  1020. 
®.  Martin,  ii.,  921. 
Colsell  v.  Budd,  ii.,  690. 
Colt  0.  Dutton,  i.,  212,  250. 
Colvin  0.  1 1  er  Majesty's  Procurator- 
General,  ii.,  698. 
Commonwealth   (Tlie)  v.  Kimball, 
i.,  512. 


Commonwealth  (The)  v.  Thirlo\»f 
i.,  509. 

0.  Webster,  ii.,  758. 
Constable  v.  Steibel  ;   i.,  471,  472 
Constance  0.  Brain,  ii.,  1067. 
Cook's  case,  i.,  198,  ii.,  945. 
Cook®.  Hearn,  ii..  818. 

®.  Nethercote,  i.,  295,  ii.,  1067. 
Cooke  0.  Green,  ii.,  715. 
®.  Soltan,  ii.,  677. 
Cooper®.  Bockctt,  i.,  433. 

0.  Hubbuck,  ii.,  666. 

®.  Langdon,  ii.,  1001. 

0.  Slade,  i.,  135. 

0.  Turner,  ii.,  690. 

v.  Waklcy,  ii.,  1069,  1070. 
Cope  0.  Bedford,  ii.,  615. 

•   0.  Cope,  ii.,  996. 
Coppoek  0.  Bower,  i.,  434. 
Corrield  v.  Parsons,  i.,  113. 
Cornisli  v.  Abington,  ii.,  932,  933. 
Cotnman   0.    The    East.    Countiqa 

Raihvay  Company,  i.,  112. 
Corporations  (case  of),  ii.,  075. 
Corven's  case,  ii.,  659. 
Cory  0.  Bretton,  ii.,  909. 
Cotton  0.  James,  ii.,  1069. 
Cottrell  0.  Hughes,  ii.,  680,  681. 
Courteen  0.  Touse,  ii.,  1076. 
Cowper  0.  Earl  Cow  per,  ii.,  702. 
Cox  0.  Kitchin,  ii.,  1086. 
Crawford  Peerage  case,  ii.,  827. 
Crease®.  Barrett,  ii.,  641,  844. 
Creed  0.  Fisher,  i.,  118. 
Crerar  v.  Sodo,  ii.,  1059. 
Creswick's  case,  i.,  262. 
Crimes  0.  Smith,  ii.,  675. 
Crisp®.  Anderson,  i.,  434,  638,703. 
Crispin  0.  Doglioni,  ii.,  848. 
Croft  0.  Lumley,  i.,  503. 
Cross  0.  Lewis,  ii.,  649,  658. 
Crossley  ®.  Lightowler,  ii. ,  672. 
Crouch  0.  Credit  Foncier  of  Eng 
land,  i.,  432. 

v.  Hooper,  ii.,  849. 
Croughtou  v.  Blake,  ii.,  84  9. 


TABLE     OF    CASES. 


1115 


Crow's  (James)  case,  ii.,  892. 
Cubbitt  v.  Porter,  ii.,  716. 
Cunrlell  v.  Pratt,  i.,  199,, 
Cimlifle  v,  Sefton,  ii.,  906. 
Cunningham  r.Fonblanque,ii.,686. 
Curtis  v.  Wheeler,  ii.,  1068. 
Cuthbertson  v.  Irving,  ii.,  922. 
Cuts  v.  Pickering,  i.,  291. 

• 

Daine*  v.  Hartley,  ii.,  865. 
Dalrymple  v.  Dalrymple,  ii.,  683. 
Dalston  v.  Coatsworth,  ii.,  702. 
Dalton  v.  Lloyd,  i.,  57. 
Daly  v.  Thompson,  ii.,  942. 
Daniaree's  case,  ii.,  840. 
Dane  v.  Lady  Kirkwall,  ii.,  1004. 
Darby  v.  Ouseley,  i.,  477,  ii.,  896, 

1073. 
Darcy  v.  Leigh,  i.,  179. 
Dartmouth  (Countess  of)  v.  Roberts, 

ii.,  591,  676. 
Darwin  v.  Union,  ii.,  656,  660. 
Dasin  Nayuican's,  &c,  case,  ii.,  916. 
Davidson  v.  Cooper,  i.,  433. 
Davies  r.  Roper,  ii.,  595. 

v.  Stepens,  ii.,  670,  671. 
Davis  v.  Dinwoody,  i.,  271. 
Dawes  v.  Hawkins,  ii.,  672. 
Dawkins  v.  Lord  Rokeby,  ii.,  980, 

1020. 
Dawson  v.  The  Duke  of   Norfolk, 

ii.,  658. 
Day  v.  Williams,  ii.,  591,  681. 
Deane  v.  Pack  wood,  L,  289,  293. 
De  Haber  v.  The  Queen  of  Portu- 
gal, ii.,  708. 
Delahunt's  case,  ii.,  788. 
De  la  Motte's  case,  i.,  452,  456. 
Dempster  v.  Purnell,  ii.,  686. 
Denn  d.  Tarzwoll  v.  Barnard,  ii., 

641. 
De  Rossi  r.  Polhill,  i.,  57. 
Devon  Witches  (case  of),  ii.,  969. 
Dewdney  v.  Palmer,  i.,  139. 
De  Wolf   v.  Archangel   "usurance 

Company,  ii.,  714. 


Dey  v.  Barlow,  ii.,  1050. 
Dickson  v.  Evans,  i.,  506. 
Digby  v.  Atkinson,  ii.  683. 
Ditcham  v.  Bond,  ii.,  674. 
Ditchers.  Kenrick,  i.,  404. 
Dixon  v.  Dixon,  ii.,  692. 
Dodd  v.  Norris,  i.,  199,  485,  487. 
Doe  d.  Fiance  v.  Andrews,  i.,  408, 
ii.,  693. 
d.  Bryan  v.  Bancks,  ii.,  942. 
d.  Bowley  v.  Barnes,  ii.,  632. 
d.  Lewis  v.  Bingham,  ii.,  638. 
d.  Jarnesfl.  Brawn,  ii.,  632. 
d.  Bather  v.  Brayne,  ii.,  1072. 
d.  Brandon  v.  Calvert,  ii.,  691 
d.  Tatum  v.  Catomore,  i.,432. 
d.  Wilkins  v.  Cleaveland  (Mar- 
quis of),  ii.,  631. 
d.    Hammond  v.    Cooke,     ii., 

593,  674. 
d.  Jenkins  v.  Davies,  L,    113, 

459,  464. 
d.   Lewis  v.  Davies,  ii.,   592, 

631. 
d.  Lloyd  v.  Deakin,  ii.,  693.  . 
d.  Sykes  v.  Durnford,  i.,  415. 
d.  Flemming  v.  Flemming,  ii,, 

624. 
d.  Wartney  v.  Grey,  ii.,  818. 
d.  Banning  v.  Griffin,  ii.,  692. 
d.  Harrison  v.  Hampson,  ii., 

597,  710. 
d.  Putland  v.  Hilder,  ii.,  672, 

674,  678,  679. 
d.  Beanland  v.  Hirst,  ii.,  704. 
d.  Johnson®.  Ireland,  ii.,  574. 
d.  George  v.  Jesson,  ii.,   602. 

693. 
d.  Caldecott  v.  Johnson,  i.,  498 
d.    Whittick    v.   J  hnson,  ii., 

717. 
d.  Barrett  v.  Kemp,  ii.,  716. 
d.  Lord.Egremont  v.  Lungdon, 

ii.,  680. 
d.  X  elsh  r.       a    field,  i.,  129, 
490,  ii.,  1080. 


iu6 


TABLE     OF    CASES. 


Doe  d 

Avery  r.  Langford,  ii., 

1051. 

d. 

Burne  v.  Martyn,  ii.,  G 

79. 

d. 

Grillin  v.  Mason,  ii.,  G 

3.8. 

d 

Mason  v.  Mason,  ii.,  6 

76. 

d. 

Knight  v.  Nepean,  ii., 

695. 

d 

Perry  v.    Newton,   i., 
468. 

458, 

d. 

Shallcross  v.  Palmer,  i. 

433. 

d. 

Pring  v.  Pearsey,  ii.,  716. 

d. 

Bristow  v.  Pegge,   ii., 
G78. 

592, 

d 

Church  v.  Perkins,  i. , 

423. 

a. 

Cadwalader*.  Price,  ii 

.,681 

d. 

Fisliar  v.  Prosper,  ii., 

326. 

d. Newman®.  Rutland,  ii. 

681. 

d. 

Fenwick  v.  Reed,  ii., 
593,  658,  675. 

591, 

d. 

Reede   v.  Reede,    ii., 
679. 

U  ,  I, 

d. 

Lewis  v.  Rccs,  ii.,  718 

d. 

Roberts  v.  Roberts,  ii., 

942. 

d. 

Child  v.  Roe,  ii.,  1051. 

d. 

Gilbert  v.  Ross,  i.,  128, 
404,  ii.,  820. 

129, 

d. 

Worcester  Trustees  v.  Row- 

lands, i.,  498,  ii.,  1072 

d. 

Graham  v.  Scott,  ii.,  677. 

d, 

Hodsden  v.  Staple,  ii., 

G7S,  679. 

677, 

d. 

Mudd   v.    Suckermore 

»    J-> 

454,  455,456,  459,466, 

468, 

473. 

d. 

Bowerman  v.  Sy bourn 
677. 

,  ii., 

d. 

Tilman  v.  Tarver,  459, 
463. 

460, 

d. 

Croft  v.  Tidbury,  ii.,  718. 

d. 

Patteshall  v.   Turford 
685,  852. 

ii., 

d. 

Teynham  (Lord)  v.  Tyler, 

L,  216. 

d. 

Howson   v.   Waterton, 
593. 

ii., 

d. 

Norton  v.  Webster,  i., 

205. 

Wrighte,    ii., 
Wroot, 


iu 


Biidger   o.  Whitehead,    i. 
508. 


Doe  d.  Dunraven  (Earl  of)  v.  Wil- 
liams, ii.,  674,  716,  718. 
d.  Foley  v.  Wilson,  ii.,  674. 
d.  Oldham    v.     Woolley,     ii., 

676. 
d.  Burdett    1 

677. 
d.   Shewen 
591. 
Donellan's  case,  ii.,  788,  899. 
Doue's  (Adria)  case,  ii.,  789. 
Douglas  cause,  ii.,  611. 

v.  Scougall,  ii.,  712. 
Du  Barre  v.  Livette,  ii.,  985,  986, 

989,  990. 
De  Moulin's  case,  i.,  3,  55. 
Duncombe  v.  Daniel,  i.,  134. 
Dunlop'a  (Bessie)  case,  ii.,  970. 
Dunn  v.  Packwood,  i.,  289,  290. 
Dunraven  (Lord)  v.  Llewellyn,  ii., 

843. 
Dunston  v.  Paterson.  ii.,  932. 
Durrant  v.  Friend,  ii.,  698. 
Dwyerv.  Collins,  ii.,  818,  980. 
Dyer  v.  Best,  i.,  423. 
Dymoke's  case,  i.,  262. 

Eagleton  v.  Kingston,  i.,  452,457, 

472. 
Earl   d.   Goodwin  v.    Baxter,   ii., 

631,  676. 
Earle  v.  Picken,  ii.,  973. 
Edie  v.  Kingsford,  ii.,  852. 
Edmonds  v.  Walter,  ii.,  1076. 
Edmunds  v.  Greenwood,  ii.,  1054. 

v.  Groves,  ii.,  926. 
Edwards*.  Crook,  ii.,  685. 
v.  Jones,  ii.,  1072. 
v.  Matthews,  ii.,  1071. 
v.  Wakefield,  ii.,    1055. 
Eldridge  v.   Knott,   ii.,    654,  673, 

675. 
Elk  in  v.  Janson,  i.,  507. 
Elliott's  (Isobel)  case,  ii.,  9.0. 
Elmes  v.  Ogle,  ii.,  7    ~>. 
Elsam  v.  Faucett,  i.,  485. 


TABLE     OF    CASES. 


1117 


Emery  v.  Grocock,  ii.,  677,  680. 
England   d.   Syburn  ».    Slade,  ii., 
677. 

v.  Wall,  ii.,  717. 
Essex  Witches  (case  of),  ii.,  969. 
Evans  v.  Bicknell,  ii.,  678. 

v.  Evans,   i.,   89,   307,    ii., 
751,  765,  1C98. 

v.  Powis,  i.,  524. 
v.  Protliero,  i.,  434. 
Everett  v.  Lownhara,  ii.,  1067. 
Everingham    v.      Roundell,      ii., 

820. 
Exalla.  Partridge,  ii.,  818. 

Fachina  v.  Sabine,  i.,  212. 
Faith  v.  M'Intyre,  ii.,  1059. 
Falkner  v.  Johnson,  ii.,  632. 
Falmouth  (Earl  of)  v.  Roberts,  i., 

415,  43-2. 
Fanshaw's  case,  ii.,  1016. 
Farrar  v.  Bcswick,  ii.,  686. 
Faucas  v.  Sarsfield,  ii.,  712. 
Fauldert-.  Silk,  ii.,  1004. 
Fearn  v.  Filica,  ii.,  926. 
Fennell  v.  Tait,  i.,  227. 
Fenwiek  v.  Bell, 

Fernandez.  Ex  parte,  i.,  190,  191. 
Ferrers  (Earl)   v.   Shirley,  i,  454, 

467. 
Feversham  (Lord)  v.  Emerson,  ii., 

936. 
Finch  v.  Finch,  i.,  684. 
Findon  v.  Parker,  ii.,  940,  942. 
Fisher  v.  Graves  (Lord),  ii.,  652. 

v.    Ronalds,    i..   189,    190, 

193. 

v.  Sarnuda,  ii.,  820. 
Fitter's  case,  i.,  338. 
Fitzjames  v.  Moys,  i.,  296. 
Fitzwalter  Peerage  case,  i.,  468, 

471. 
Flemish  Parson's  case,  i.,  358. 
Footer.  Hayne,  ii.,  985. 
Ford  v.  Elliott,  ii.,  897. 
Forshaw  v.  Lewis,  ii.,  1052. 


Foster  v.  Allenby,  ii  ,  595. 

v.  Bates,  ii.,  565. 

1).  Steele,  ii.,  595. 
Fowler  v.  Coster,  ii.,  1069. 
Francia's  case,  i.,  456. 
Fray  v.  Blackburn,  ii.,  621. 
Freeman  v.   Cooke,    ii.,    932,    933, 

934^  936. 
Friend's  (Sir  J.)  case,  i.,  198. 
Frost  v.  Holloway,  i.,  109. 
Fryer  v.  Gathercole,  ii.,  891. 
Fuller  v.  Lane,  ii.,  659. 
Fursdon  v.  Clogg,  ii.  852. 

Galsworthy  v.  Norman,  ii.,  1051. 
Gann  v.  Gregory,  i.,  433. 
Garnett's  case,  ii.,  953. 
Garrard  v.  Tuck,  ii.,  680. 
Garrels  v.  Alexander,  i.,  452. 
Gaskill  v.  Skene,  ii.,  898. 
Gathercole  v.  Miall,  ii.,  814,  816. 
Geacli  v.  Ingall,  i.,  498,  ii.,  1071. 
Gee  v.  Ward,  ii.,  817. 
George  v.  Surrey,  i.,  453. 
Gibson  v.  Clark,  ii.,  591,  592,  659, 
675. 

v.  King,  ii.,  685. 
v.  Minet,  ii.,  940. 
v.  Muskett,  ii.,  596. 
v.  Small,  ii.,  712. 
Giles®.  Hill,  ii.,  827. 
Goddard  v.  Smith,  i.,  484. 
Gomm  v.  Parrott,  ii.,  1052. 
Goodlirl  v.  Fuller,  ii.,  1050. 
Goodman     v.    Cotherington,     ii., 

983. 
Goodright  d.  Stevens  v.  Moss,  ii., 

996. 
Goodtitle   d.   Parker  v.  Baldwin, 

ii.,  659,  674. 
Goodtitle  d.  Revett  v.  Braham,  i., 
463,  469. 

d.  Jones  v.  Jones,  ii.,  677, 
679. 

d.    Baker  v.    Milburn,   n„ 
684. 


1 1 1  s 


TABLE     OF    CASES. 


Goodtitle  d.  Norris  v.  Morgan,  ii., 

678. 
Goodwin  v.  Gibbons,  ii.,  595. 
Gore  v.  Gibson,  ii.,  914,  915. 
Gould  v.  Jones,  i.,  454. 
Gowdie's  (Issobcll)  case,  ii.,  970. 
Graham  v.  Gracie,  i.,  524. 
Grant  v.  Grant,  i.,  427. 
Gray  v.  Bond,  ii.,  657,  676. 
Greaves  v.  Hunter,  i.,  456. 
Green  v.  Brown,  ii.,  713. 
Green  (Cnpt.)  et    al.,  case  of,   ii., 

752. 
Greenough  v.  Eccles,  ii.,  1084. 

v.  Gaskell,  ii.,  985. 
Greenshields  v.  Crawford,  i.,  454. 
Gregg  v.  Wells,  ii.,  932. 
Grellier  v.  Neale,  ii.,  637. 
Greville  v.  Tylee,  i.,  433. 
Griffith  v.  Matthews,  ii.,  660. 

v.  Williams,  i.,  458. 
Griffits  v.  Ivery,  i.,  469. 
Grigg's  (Mary)  case,  i.,  274. 
Grindell  ®.  Brendon,  ii.,  634. 
Grose  v.  West,  ii.,  715,  716. 
Guernsey    (Lord)    v.    Rodbridges, 

ii.,  655. 
Gurney  v.  Langlands,  i.,  470. 

Hadfield's  case,  i.,  287. 
Hagedorn  v.  Reid,  ii.,  685. 
Hagin's  (Cok.)  case,  i.,  210. 
Haire  v.  Wilson,  ii.,  600,  724. 
Hale  ».  Oldroyd,  ii.,  673. 
Halle.  Ball,  ii.,  820. 

v.  Featlicrstone,  i.,  112. 

v.  Swift,  ii.,  658. 
Hallet  v.  Cousens,  ii.,  1076. 
Hallifax  v.  Lyle,  ii.,  935. 
Hallybread's  (Bose)  case,  ii.,  970. 
Hardon  v.  Hesketh,  ii.,  682. 
Harlin's  (Anne)  case,  ii.,  966. 
Barman's  case,  i.,  518. 
larinood  v.  Oglauder,  ii.,  591,  592. 
Harper  v.  Cliark-swortli,  ii.,  671. 
Harrington  ».  Fry,  i.  454. 


Harrison     v.     The    Burgesses    of 

Southampton,   ii.,  624.  1006. 
Harrod  v.  Harrod,  ii.,  624. 
Hart  v.  Hart,  i.,  434. 
Harvey  v.  Mitchell,  ii.,  795. 

v.  Towers,  i.,  502,  503. 
Harvie  v.  Rogers,  ii.,  674. 
Harwood  v.  Goodright,  ii.,  703. 
Haskill  v.  The  Commonwealth,  i., 

512. 
Hassell  v.  Cole,  i.,  524. 
Hasselden  a.  Bradney,  ii.,  675. 
Hastings  Peerage  case,  ii.,  676. 
Hawkes  v.  Salter,  ii.,  685. 
Hawkesworth  v.  Showier,  i.,  271. 
Hawkins^.  Alder,  i.,  117. 
Hayslep  v.  Gymer,  ii.,  898. 
Head  v.  Head,  ii.,  626. 
Headlam  v.  Headiey,  ii.,  715. 
Healey  v.  Thatcher,  ii.,  909. 
Heidon  v.  Ibgrave,  i.,  168. 
Hemmings  v.  Robinson,  ii.,  861. 
Henderson    v.     Broomhead,     ii., 

1020. 
Hendy  v.  Stevenson,  ii.,  655. 
Henman  v.  Lester,  ii.,  810. 
Herschfield  v.  Clark,  ii.,  1054. 
Hetherington  v.  Kemp,  ii.,  685. 
Hibberd   v.   Knight,  i.,   404,    ii. 

985. 
Hick  v.  Keats,  ii.,  601,  615. 
Higgs  v.  Dixon,  i.,  415. 
Higham  v.  Ridgway,  ii.,  174,  850 
Hill®.  Smith,  ii.,  654. 
Hillary  v.  Waller,  ii.,  677,  681. 
Hitch  v.  Mallett,  ii.,  981. 
Hitchcock  v.  Beardsley,  ii.,  698. 
Hitchins  v.  Eardley,  ii.,  847. 
Hodges  v.  Ancrum.  i.,  112. 
v.  Lawrence,  i.,  142. 
Holcombe  v.  Hewson,  i.,  482. 
Holcroft  v.  Heel,  ii.,  656. 
Holford  v.  Bailey,  ii.,  716. 
Hollingham  v.  Head.,  i.,  482. 
Holman,  Ex  parte,  ii.,  680. 
v.  Johnson,  ii.,  942. 


TABLE     OF    CASES. 


1119 


Holmes  v.  Bellingham,  ii.,  715. 
v.  Buckley,  ii.,  674. 
v.  Sixsmith,  i.,  434. 
Home  v.  Bentinck,  ii.,  980.  v 
Hopewell  v.  De  Pinna,  ii.,  692. 
Horn  v.  Noel,  i.,  422. 
Home's  (Andrew)  case,  ii..  619. 
Horton  «.  Bott,  ii.,  1055. 
Houghton  v.  Gilbart,  ii.,  686. 
Houstman  v.  Thornton,  ii.,  713. 
How  (In  the  goods  of),  ii.,  692. 
Howard  v.  Hudson,  ii.,  932,  933 

v.  Smith,  ii.,  904. 
Hubbard  v.  Lees,  ii.,  848. 
Hubert's  case, 
Huckman  v.  Fernie,   i.,    498,   ii., 

1071. 
Huckvale  (In  the  goods  of)  ii.,638. 
Hudson's  case,  i.,  413,  ii.,  1022. 
Hudson  v.  Roberts,  i.,  137. 
Hughes  v.  Bury,  i.,  524. 

v.  Rogers,  i.,  469. 
».  Thorpe,  ii.,  910. 
Hull  (Mayor  of)  v.  Horner,  ii.,  656, 

659,  675. 
Hunt's  case,  ii.,  782. 
Hunt*.  Hewett,  ii.,  1051. 
v.  Hunt,  i..  416. 
v.  Massey,  ii.,  684. 
Hunter,  The  (case  of)  ii.,  709. 

India,  Secretary  of  State  in  Coun- 
cil for,  v.  Kamachee  Boye  Sahaba, 
ii.,  565. 

Inman  v.  Whormby,  ii.,  675. 

Ionides  v.  Pacific  Insurance  Com- 
pany, i.,  434. 

Ipswich  Dock  Commissioners  v. 
Overseers  of  St.  Peter's,  Ipswich, 
ii.,  715. 

Isack  v   Clarke,  ii.,  631. 

Jackson  v.  Irwin,  ii.,  689. 

v   Smithson,  i.,  137. 
v.  Thomason,   i.,  413,  ii., 
1084. 


Jacob  v.  Dallow,  ii.,   660. 
Jacobs  v.  Layborn,  i.,  139,  205. 
James  v.  Heward,  ii.,  635. 
v.  Salter,  ii.,  1068. 
Jam's  v.  Dean,  ii.,  671. 
Jayne  v.  Price,  ii.,  597,  599.     * 
Jefferies  v.  Clare,  i.,  ~)0'-l. 
Jenkins  v.   Harvey,  ii.,    594,   596, 

648. 
Jenning's  case,  i.,  355. 
Jewison  *.  Dyson,  ii.,  659. 
Jeyne  v.  Price,  ii.,  641. 
Johanna,  Emilie,  The  (case  of),  ii.f 

709. 
Johnson  v.  Barnes,  ii.,  641. 
v.  Mason,  ii.,  906. 
v.  St.    Peters,   Hereford, 
ii.,  683. 
Jones'  (Ernest)  case,  i.,  481. 
(Rebecca)  case,  ii.,  970. 
Jones  v.  Perry,  ii.,  S40. 

v.  Tarleton,  ii.,  824. 
v.  Yates,  ii.,  942. 
Jordaiue  v.  Lashbrook,  ii.,  940. 
Jungbluth  v.  Way,  ii.,  806. 

Kearney  v.  London  and    Brighton 
Railway  Company,  ii.,  578. 

Keen  v.  Keen,  ii.,  684. 

Keene  d.  Byron  (Lord)  o.  Deardon, 
ii.,  677. 

Kelley  v.  Solari,  ii.,  917. 

Kenrickv.  Taylor,  ii.,  660. 

Kieran  v.  Johnson,  ii.,  685. 

King  v.  Cole,  ii.,  901. 
v.  Francis,  i.,  484. 
v.  Poole,  ii.,  117. 

Kingsmill  v.  Millard,  ii.,  718. 

Kingston's   (Duchess  of)   case,  ii, 
987,  998,  1000.  1006. 

Kirchner  v.  "Venus,  i.,  431. 

Knight  v.  Adamson,  ii.,  676. 
v.  Barber,  i.,  421. 

Knight  v.  Clements,  i.,  432. 

Knill  v.  Hooper,  ii.,  712. 

Koster  v.  Innes,  ii.,  713. 


1 1 20 

* 


TABLE     OF    CASES. 


Kufh  v.  West,  ii.,  6*5. 
Kutti  v.  Cliatapan,  ii.,  971. 

Lade  v.  Holford,  ii.,  592,  G78. 

v.  Shepherd,  ii.,  G70. 
Lajpson  v.  Tremere,  ii.,  929. 
Langhorn's  case,  ii.,  171,  1080. 
Lapsley  v.  Grierson,  ii.,  G06.  608. 
Laud's  (Archbishop)  case,  i.,  1G7. 
Lawless  v.  Queale,  ii.,  904. 
Lawrence  v.  Hitch,  ii.,  594,  649. 

v.  Obee,  ii.,  673. 
Laws  v.  Rind,  ii.,  G84. 
Lawton  v.  Sweeny,  i.,  497. 
Layer'scase,  i.  198.  454. 
Leach  v.  Simpson,  i.  134,  418. 
Le  Brun's  case,  i.,  356. 
Leconfield  v.  Lonsdale,  ii.,  649. 
Lee  v.  Savile,  i.,  179. 

v.  Willock,  ii.  692. 
Leeds  v.  Cook,  ii.,  703. 
Leete  v.  The  Gresham    Life  Insu- 
rance  Society,   i.,  498,  ii.,   618, 
1071. 
Legit's  case,  ii.,  610. 
Legge  v.  Edmunds,  ii.,  625. 
Leigh  v.  Hewitt,  ii.,  682. 
Leighton  v.  Leighton,  i.,  417,  ii., 

824,  892. 
Leng  v.  Hodges,  ii.,  611. 
Lessee  Lord  MasscyD.  Touchstone, 

ii.,  678. 
Lethbridge  v.  Winter,  ii.,  670. 
Leuckhart  v.  Cooper,  ii.  686. 
Lewe's  Trusts,  In  re,  ii.,  696. 
Lewis  v.  Davidson,  ii.,  621. 

v.  Sapio,  i.,  452. 
Ley  v.  Barlow,  ii.,  1050. 
Leyfield'a  (Dr.)  case,  ii.,  824. 
Liebman  v.  Poole y,  ii..  820. 
Liford's  case,  ii.,  564.  ' 
Liggins  v.  Inge,  ii.,  673. 
Lisoourne   (Earl  of)  v.  Davies,   ii., 

718. 
Livett  v.  Wilson,  ii.,  658. 
Lopez  v.  Andrews,  ii.,  675. 


Lord    v.     The    Commissioners   of 

Sydney,  ii.,  715. 
Louisiana    (Citizens'   Bank   of)   t>. 

First    National    Bank    of  New 

Orleans,  ii.,  933. 
Loveden  v.  Loveden,  ii.,  753. 
Lovell  v.  Smith,  ii.,  674. 
Lowe©.  Carpenter,  ii.,  666. 
v.  Joliffe,  ii.,160.  413. 
Lucas  v.  Novisilienski.  ii.,  690. 
Lumley's  (Lord)  case,  i.,  167. 
Lush  v.  Russell,  ii.,  514. 
Lutterell   v.    Reynell,    i.,    167,    i., 

939. 
Lynch  v.  Clarke,  ii.,  824,  829. 
Lynes  v.  Lett,  ii.,  648. 
Lynn  (Mayor   of)    v.    Turner,   ii., 

600. 
Lyon  v.  Reed,  ii.,  930. 

M' Andrew  v.  A  dames,  i.,  714. 
Macbride  v.  Macbride,  i.,  198. 
M'Cannon  v.  Sinclair,  ii.,  715. 
Macclesfield's     (Earl   of)    case,   i. 

298. 
Macdonnell  v.  Evans,   i.,   129,  ii., 

801,  833. 
Macferson  v.  Thoytes,  i.,  456. 
M'Gahey  v.  Alston,  ii.,  631,  632. 
M'Gregor®.  Topham,  ii.,  1029. 
Machu  v.  The  London  and  South 

Western  Railway  Co.,  ii.,   921. 
M'Naghten's  case,  ii.,  869. 
M'Neillie  v.  Acton,  i.,  140,  276. 
Maden  v.  Catanach,  i.,  214,  252. 
Magrath  v.  Hardy,  ii.,  936. 
Mainwaring  v.  Giles,  ii.,  659. 
Malcolmson  v.  O'Dea,  ii.,  676,  714 

849. 
Male's  case,  ii.,  892. 
Malpas  v.  Clements,  ii.,  684. 
Man«.  Cary,  i.,  829. 
Manley  v.  Shaw,  i.,  296,  297. 
Mann  v.  Swann,  ri.,  940. 
Mansell  v.  Reg.,  i.,  204. 
Mansfield's  case,  i.,  308. 


TABLE     OF    CASES. 


im 


Mardall  v.  Thelluson,  i  ,  514. 
Marine    Investment    Company    ». 

Heaviside,  i.,  434. 
Marshall  v.  Lainbe,  ii.,  632. 

v.  The   Ullswater   Steam 

Navigation  Co.,  ii.,  715,  716. 
Martin  v.  Hemming,  ii.,  1054. 
Martindale  ».  Faulkner,  ii.,  609. 
Martyn  v.  Williams,  i.,  524. 
Mason  v.  Mason,  ii.,  698. 
Master  v.  Miller,  ii.,  623. 
Mattheson  v.  Ross,  i.,  434. 
Maye.  Burdett,  i.,  137. 

v.  Hawkins,  i.,  188,  ii.,  1055. 
Meath  (Bishop  of)    v.    Winchester 

(The  Marquess  of)  ii.,  849. 
Meddowcraft  v.  Hugenin,  ii.,  1006. 
Mee  v.  Reid.  i..  250. 
Melhnish  v.  Collier,  ii.,  1081. 
Mercer  v.  Whall,  ii.,  1070,  1072. 

v.  Woodgate,  ii.,  670. 
Merrick  v.  Wakeley,  i.,  408. 
Metropolitan       Saloon      Omnibus 

Company  v.  Hawkins,  ii.,  1050. 
Metters  v.  Brown,  ii.,  641. 
Mexican,    &c.    Company     (In    re), 

Ex  parte  Aston,  i.,  190. 
Michelle.  Williams,  i.,  112. 
Middleton  v.  Earned,  ii.,  602. 
Middleton  v.  Sandford,  i.,  454. 
Midland  Rail.  Co.  v.  Bromley,  i., 

496. 
Mildrone's  case,  i.,  250. 
Mile's  case,  ii.,  756,  790. 
Miles  v.  Rose,  ii.,  599. 
Millar  v.  Heinrick,  i.,  33. 
Miller  v.  Salomons,  i.,  214. 
Millman  v.  Tucker,  i.,  199. 
Mills  o.  Bar  her,  L,  498. 
Milne  v.  Liester.  ii.,  840. 
Mitchell  v.  Ne whall,  ii.,  683. 
Moltone.  Camroux,  i.,  308,  ii. ,916. 
Monke  *.  Butler,  ii.,  623. 
Montefiori  v.  Montefiori,  ii..  942. 
Moody  v.  The  London  and  Brigh- 
ton Railway  Co.,  i.,  482. 


Moore.  Roberts,  ii.,  1054,  1055 
Moore  «.  Bullock,  ii.,  648. 

v„  Rawson.  ii.,  674. 
Moran ivies'    (Count   of)    case,    ii., 

1096. 
Moore's  (Sir  Thomas)  case,  i.,  288 
Morgan  v.  Curtis,  ii.,  660. 
v.  Evans,  ii.,  898. 
V.  Thomas,  ii.,  5G~. 
v.  Whitmore,  ii.,  684. 
Moriarty  v.  London,  Chatham  and 

Dover  Railway  Co.,  i.,  701. 
Morris  v.  Davies,  ii.,  625,  626. 

v.  Miller,  ii.,  624. 
Morrison  v.  Lennard,  i.,  225,  226. 
Mortimer  v.  Cradock,  ii.,  700. 

v.  M'Callan,  ii.,  824,829, 
1086. 

v.    Mortimer,     ii.,     753, 
964. 
Morton  v.  Horton,  ii.,  691. 
Motz  v.  Moreau,  ii.,  691. 
Mould  v.  Griffiths,  i.,  117. 
Moysey  v.  Hillcoat,  ii.,  o76. 
Munroe  v.  Vandam,  ii.,  712. 
Murieta  v.  Wolfhagen,  i.,  454. 
Murray  (In  the  goods  of)  ii.,  698. 
v.  Gregory,  ii.,  904. 
v.  Mann,  ii.,  942. 

Neilaue.  Hanny,  i.,  262. 

Nelson    (Earl)   v.   Lord   Bridport 

ii.,  875. 
Nelthrop  v.  Johnson,  ii.,  827. 
Nepean  v.  Doe  d.  Knight,  ii.,  694. 
Newcastle  (Pilots   of)  v.  Bradley. 

i.,  594. 
Newton  v.  Ricketts,  i.,  471. 
NichoUs  v.  Dowding,  ii.,  1073. 
Nixon  v.  Brownlow,  i.,  177. 
Noell  v.  Wells,  ii.,  1007. 
Norbury  v.  Meade,  ii.,  674.  675. 
Norden's  case,  ii.,  701. 
Norden  v.  'Williamson,  i.,  139. 
Norcott's  case,  i.,  311,  ii.,  791. 
Norman  v.  Beaumont,  ii.,  938. 


7i 


1122 


TABLE     OF    CASES. 


Oakes  ®.  Wooa   i.,  137. 

Oates's  (Titus)  oase,  ii.,  940,  941, 

1003. 
Gates  ®.  Canning, 
O'Connor  ®.  Majoribanks,  i..  271. 
Odo  des  Compton's  case,  i.,  163. 
Omanney  ».  Stillwell,  ii.,  692. 
Omychund  or  Omichund  ®.  Barker, 

i.,    70,    175,  ii.,   208,  213,    214, 

215,  237,  250,  252,  284,  285. 
Oppenheini  (In  the  goods    of),  i. , 

471. 
Osborn  ®.  The  London  Dock  Co., 

i.,  189,  191,  194. 

v.  Thompson,  i.,  498. 
Oshey  ®.  Hicks,  ii.,  685. 
Oswald  ®.  Legh,  ii.,  690. 
Owen  ®.  Owen,  ii.,  681. 
Oxford's  case,  i.,  287. 

Paddock    ®.    Forrester,    ii.,    652, 

909. 
Palmer  ®.  Orowle,  ii.,   983. 

®.     The    Grand     Junction 

Railway  Co.,  ii.,  719. 
v.  Newell,  ii.,  683. 
Panton  ®.  Williams,  i.,  113. 
Papendick     ®.      Bridgewater,    ii., 

850. 
Parker®.  Green,  i.,  482. 
®.  Loach,  ii.,  659. 
v.  Potts,  ii.,  712. 
Parkhm  mith,  ii.,  639. 

Parkins  v.   Hawkshaw,  i.,  454,  ii., 

986. 
Parry's  (Joan)  case,  ii.,  959. 
Parsons  v   Bellamy,  ii.,  675. 

®.  Brown,  ii.,  623. 
Patch's  case,  i.,  827,  ii.,  772. 
Patent   Type    Founding  Company 

v.  Lloyd,  ii.,  1053. 
Paxton  ®.  Douglas,  i.,  189. 
Payne  ®.  Shedden,  ii.,  674. 
Peaceable,  d.  Ilornblower  ®.  Read, 

i.,  626. 
Pearce  v.  Whale,  ii.    632. 


Pearcy  v.  Dicker,  i ,  454. 
Pedley  v.  Wellesley,  i.,  139. 
Pendock  d.  Mackiuder  v.    Mack- 

inder,  i.,  221. 
People  (The)    v.    Mather,  i.,   189, 

192. 
Pepper®.  Barnard,  ii.,  660. 
Perth  Peerage  case,  ii.,  875. 
Pettman®.  Bridger,  ii.,  659,  6G0. 
Pfiel  v.  Vanbatenberg,  ii.,  690. 
Phene  re,  ii.,  696. 
Phillips  v.  Crutchley,  ii.,  683. 
v.  Winiburn,  ii.,  623. 
Pickard  v.  Sears,  ii.,  931. 
Pickering®.  Stamford  (Lord),  ii., 

675,  691. 
Pigot's  case,  i.,  432,  433. 
Pike  v.  Badmering,  i.,  413. 
Pipe  ®.  Steele,  i.,  261. 
Pirie  v.  Iron,  i.,  57. 
Place  (In  re),  ii.,  1006. 
Plant®.  Taylor,  ii.,  681,  847. 
Plowes  ®.  Bossey,  ii.,  625. 
Pomeroy  ».  Baddeley,  ii..  1067. 
Ponsford  ».  Walton,  i.,  434. 
Poole  ®.  Huskinson,  ii.,  671. 
Pooley  ®.  Godwin,  i.,  434. 
Popish  Plot  cases,  i.,  171. 
Potez  v.  Glossop,  ii.,  684. 
Potter  v.  De  Ross,  ii.,  683. 

®.  North,  ii.,  644. 
Powell  ®.  Ford,  i.,  452. 

v.  Milbanke,  ii.,  592. 
®.  Milburn,  ii.,  623. 
Powley  ®.  Walker,  ii.,  682. 
Praslin'a  (Due  de)  case,  ii.,  953. 
Price  ®.   Harrison,  ii.,  1050. 
®.  Powell,  ii.,  684. 
v.  Torrington  (The  Earl  of), 

ii..  851. 

v.  Worwood,  i.,  509. 
Primitious,  case  of,  ii.,  965. 
Prichard  v.  Bagshawe,  ii.,  904. 
Prilt  v.  Fairclough,  ii.,  685. 
Prohibitions  del  Roy,  i.,  39. 
j  Purchase's  case,  ii.,  840. 


TABLE     OF    CASES. 


1123 


Pye  v.  Butterfield,  i.,  201,  ii.,  1055. 

Queen    Caroline's   case,  i.,  72,   ii., 

160,  163,  205,  247,  249. 
Quilter  v.  Jorfs,  ii.,  814. 

llad  well's  (Robert)  case,  ii.,  612. 
Raggett  v.  Musgrave,  ii.,  683. 
Raleigh's  (Sir  Walter)  case,  i.,  170, 

ji.,  1010. 
Rambert  v.  Cohen,  i.,  421. 
Ramuz  v.  Crowe,  ii.,  806. 
Randle  v.  Blackburn,  ii.,  896 
Randolph's  case, 
Rands  v.  Thomas,  ii..  942. 
Rann  v.   Hughes,  i.,  412,  419,  ii., 

719. 
Ratcliffe's  case,  ii.,  1040,  1061. 
Rawlinson  v.  Greeves,  ii.,  676. 
Rayner  v.  Allhuson,  ii.,  1051. 
Raynham's  (Rich,     de)    case,   ii., 
939. 
Read  ».  Brookman,  ii.,  655,  675. 

i).  Jackson,  ii.,  621. 
Reading's  case,  i.,  199. 
Reed  v.  Passer,  ii.,  624. 
Rees   d.  Chamberlain  v.  Lloyd,  ii., 

631. 
Reeve  v.  Long,  ii.,  820. 
Reeves  v.  Brymer,  ii.,  691. 
Runiger  v.  Fogassa,    i.,  162,    179, 

ii.,  1030. 
Rem  v.  Smith,  ii.,  1020. 
R.  v.  A.bergwilly,  i.,  174. 

v   Adams,  i.,  361,  362. 

v.  Addis,  i.,  268. 

«    Alberton,  ii.,  625. 

v.  All  Saints,  Southampton,  ii., 
636. 

t.  All     Saints,    Worcester,    ii., 
188. 

v   Archdall,  ii.,  651. 

»   Arundel   (The   Countess  of), 
ii..  702. 

c    Aspinall,  i.,  485. 

v.  A-twood,  i.,  218. 


R.  v. 
v. 

V. 
V. 
V. 
V. 
V. 
V. 


V. 

V. 
V. 
V. 

V. 
V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 

1). 

V. 
V. 
V. 
V. 
V. 


r. 
0. 
V. 
V. 
V. 
V. 

s 


Azire.  i.,  271. 

Baker,  i..  115. 

Baldry,  ii..  947. 

Ball,  ii.,  546. 

Barker,  i.,  485. 

Barnet,  ii.,  810. 

Barnsley,  ii.,  676. 

Barr,  ii.,  671. 

Bassingstoke  (The  inhabi- 
tants of),  ii.,  904. 

Bayliss,  i.,  241. 

Beard,  ii.,  1065. 

Beaver, 

Bedfordshire  (The  inhabi- 
tants ol),  ii.,  84:'!. 

Bertrand.  ii.,  1087. 

Bestland,  ii.,  634. 

Birmingham  (The  Overseers 
of),  ii.,  641,  850. 

Blake,  ii.,  859. 

Blakemore,  ii.,  1000. 

Bliss,  ii.,  671. 

Bloomsbury,  ii.,  636. 

Boston,  i.,  216. 

Boulter,  ii.,  1026. 

Boyes,  i..  193.  218,  267. 

Braiutree,  ii.,  814. 

Brampton  (The  Inhabitants 
of),  ii.,  411. 

Brasier,  i.,  174,  238,  239. 

Brice,  i.,  288,  289,  294. 

Brimilow,  ii.,  Gl  1. 

Britton,  11.,  572 

Broughton,  ii.,  1016. 

Brown,  i.,  3(53.  491. 

Budd,  ii.,  688. 

Burdett,  i.,  121,  134,  506, 
507,  549.  ii.,  019,  751,  75S, 
758,  1014. 

Burke,    i.,  491. 

Burrows,  ii.,  10G5. 

Burt,  i.,  4  87. 

Butcher,  ii.,  1065. 

Byrne,  i.,  892. 

Carpenter,  ii.,  648. 

Carr,  ii.,  1026. 


1 1  24 


TABLE     OF    CASES. 


R.  v.  Castro,  ii.,  1084. 

R.  v. 

v.  Catesby,  ii.,  034. 

v.  Cator,  i.,  470,  450. 

9. 

e.  Chaddertou,  i.,  174. 

V. 

t>.  Chorlcy  (The  Inhabitants 

of), 

V. 

i.,  074. 

V. 

9.  Clarke,  i.,   200,  485,  487, 

ii., 

V. 

010. 

V. 

9.  Clewes,  ii.,  754. 

V. 

v.  Clifford,  ii.,  1006. 

V. 

v.  Cliviger  (The  Inhabitants 

of), 

V. 

i.,  188. 

V. 

v.  Cock  croft,  i..  200. 

V. 

v.  Cockin,  i.,  361. 

V. 

v.  Cole,  i.,  484. 

V. 

v.  Colley,  i.,  295. 

V. 

v.  Collier,  i.,  360. 

V. 

v.  Collins,  ii.,  1066. 

V. 

c  Cook,  ii.,  757. 

9. 

v.  Cooper,  i ,  362. 

V. 

«.  Courvoisier,  ii.,  772. 

V. 

v.  Crouch,  i.,  456. 

V. 

v.  Crowhurst,  i.,  367,  374. 

v.  Cruttenden,  i.,  362. 

V. 

v.  Davies,  i.,  477. 

V. 

9.  Densley,  i.,  360. 

V. 

v.  Dewhirst,  i.,  361. 

V. 

v.  Dixon,  ii.,  723. 

V. 

v.  Donnall,  ii.,  758. 

V. 

v.  Dowling,  i.,  482. 

V. 

v.  Downing,  i.,  360. 

V. 

v.  Dunn,  ii.,  910. 

V. 

9.  Durham,  i.  218. 

V. 

v.  Dyke,  i.,  268. 

9.  East  Parieigh,  ii.,  814. 

9. 

9.  East  Mark,  ii.,  671,  672. 

V. 

9.  Edmonton    (The  Inhabitants 

V. 

of),  ii.,  715. 

9.  Edwards,  i.,  199,  810. 

V. 

9.  Eldridge,  ii.,  758,  948. 

V. 

9.  Entrehman,  i.,  251. 

v.  Enswell  (The  Inhabitants 

of), 

». 

160,  i.,  174. 

V. 

9.  Esdaile,  ii..  859. 

V. 

9.  Exall, 

9. 

v.  Exeter,  ii.,  850. 

V. 

,  Exeter  (The  Chapter  of)  ii, 
593,  675. 

Falkner,  ii.,  948. 

Farler,  i.,  268. 

Farrell,  i.,  153. 

Farrington,  ii.,  557,  723. 

Flaherty,  ii.,  917. 

Ford,  if.,  810. 

Foster,  ii.,  546. 

Francis,  i.,  483,  ii.,  547. 

Frost,  ii.,  945,  1066. 

Fry  stone,  i.,  174. 

Fursey,  ii.,  824. 

Garbett,  i.,  190,  196. 

Gardiner,  ii.,  1023,  1025. 

Gibbons, 

Gilhain,  ii.,  947,  989,  990. 

Gill,  i.,  355. 

Gompertz,  i.,  434. 

Gorden,  ii.,  632. 

Gordon,  ii.,  602,  032. 

Gordon  (Lord  G.),  i.  198,  ii. 
829,  840. 

Gould,  i.,  134. 

Green, 

Greenwood,  i.,  391. 

Griffin,  i.,  134,  ii.  990. 

Groombridge,  ii.,  611. 

Gutch,  ii.,  600. 

Hacker,  i.,  298. 

Hadfield,  i.,  135,  ii.  581. 

Haines,  ii.,  1066. 

Harborue    (The    Inhabitants 
of),  ii.,  597,  604,  006,  618. 

Hargrave,  i.,  267. 

Harmer,  i.,  373. 

Ilamngworth  (The  Inhabit- 
ants of),  i.,  39. 

Harris,  ii.,  1018. 

Ilartington  Middle   Quarter, 
ii.  998. 

Hastings,  i.,  218. 

Hatfield,  ii.,  758. 

Haughton,  ii.,  923. 

Hawkins,  i.,  623. 

Hay  (Dr.),  ii.,  698,  991. 


TABLE     OF    CASES. 


i  12$ 


».  Heath,  i.,  296. 

R  v 

v.  Hermitage,  ii.,  647. 

V 

«.  Hewlett,  i.,  362. 

V 

v.  Higginson,  i.,  231. 

V 

v.  Hill,  i.,  113,  204,  227. 

V 

v.  Hinckley,  ii.,  634. 

V 

e.  Hind,  i.,  855. 

V 

v.  Hindinarsh,  i.,»308,  756. 

V 

v.  Hodge,  ii.,  537. 

v.  Hodgkiss,  ii.,  488 

V 

e.  Hodgson,    i.,    199;    200, 

ii., 

1) 

860. 

V 

v.  Holden,  ii.,  809. 

V 

t>.  Holmes,  i.,  200. 

V 

v.  Hook,  ii.,  1023. 

V 

v.  Home,  ii.,  1059. 

1). 

t.  Howard,  ii.,  632. 

V 

v.  Hudson,  ii.,  671. 

V 

v.  Hughes,  i.  443. 

V 

v.  Hulcott,  ii.,  636. 

V. 

v.  Hulme, 

V, 

v.  Hunt,  i.,  517. 

V 

v.  Ings,  ii.,  1066. 

V 

v.  James,  i.,  470. 

« 

«.  Jarvis,  i.,  267,  ii.,  546,  947. 

1). 

v.  Jellyman,  i.,  272. 

V 

v.  Jenkins,  i.,  113,  ii.,  854. 

V. 

v.  Johnson     (Mr.     Justice), 

i-, 

V. 

472. 

V. 

v.  Joliffe,  ii.,  594,  649. 

V. 

v.  Jones,     i.,     218,     391, 

ii., 

V. 

897. 

V. 

e.  Jordan,  ii.,  611. 

V. 

v.  Kea,  ii.,  996. 

V 

».  Knaptoft,  ii.,  998. 

V, 

v.  Knill,  ii.,  1026. 

V. 

e.  Landulph    (The    Inhabitants 

V. 

of),  ii.,  715. 

V. 

e.  Lang, 

V. 

e.  Langmcad,  i.,  360. 

V 

t.  Leatham,  i.,  404. 

V 

v.  Lewis,  i.,  198. 

V 

v.  Lloyd,  ii.,  670. 

V 

v.  Lockhart,  i.,  134. 

V 

».  I  oug  Buckley  (The  Inhabit- 

V 

ants  of),  ii.,  574 

V 

,  Luffe,  ii.,  996. 
,  Lumley,  ii.,  696. 
.  Lyme  Regis,  ii.,  634. 
,  M'Daniel,  ii.,  788. 

M'Guire,  i.,  443. 
,  Magill,  i.,  268. 
.  Malings,  ii.,  1066. 

Mansfieid    (The    Inhabitant! 

ot),  ii.,  625. 
,  Manvvaring,  ii.,  624. 
,  Manzano,  ii.,  1066. 

Marsden,  ii.,  1059. 

Martin,  i.,  485. 

Matthews,  ii.,  810. 
,  Mawbey,  ii.,  1087. 

Mayhew,  ii.,  1025. 
,  Mazagora,  ii.,  724. 
,  Mead,  ii.,  855. 

Mellor,  ii.,  669. 

Millis,  ii.,  624. 
,  Milne,  1.,  288. 

Montague,  ii.,  600,  659,  073. 
.  Moore,  ii.,  947. 
,  Moores,  i.,  268. 

Morgan,  i.,  250,  458. 
,  Morris,  ii.,  634. 

Murphy,  i.,  134,  487,  ii.,  633 

Murrey,  ii.,  G25. 

Mnscotr,  ii.,  1016,  1017. 
,  Mytton,  ii.,  849. 

Nash,  ii.,  724. 

Neal,  i.,  268. 

Newton,  ii.,  810,  917. 
.  Nicholas,  i.,  241. 

Noakes,  i.,  208. 

O'Coigly,  i.,  198,  ii.,  1068. 

O'Connor,  i.,  198. 

Oddy,  i.,  360.  476. 

Palmer,  ii.,  758. 

Parker,  i.,  208,  ii.,  1024. 
,  Partridge,  i.,  361,  362. 
,  Payne,  i.,  260. 
,  Perkins,  ,..  239,  244. 
.  Petrie,  ii.,  671. 
.  Philips,  ii.,  611. 
.  Pike,  i.,  243. 


1126 


TABLE     OF    CASES. 


R   o   Powell,  i.,  238. 
v.  Radcliffe,  ii.,  1059. 
t>.  Reading,  i.,  290,  ii.,  996. 
v.  Rees,  ii.,  632. 
t>.  Reeve,  ii.,  047. 
v.  Roberts,  ii.,  1023,  1025. 
v  Robins,  i.,  200. 
v.  Rook,  ii.,  996. 
v.  Rosser,  i.,  296. 
<c.  Rowton,  i.,  1:31,  484,  487. 
v.  Rudd,  i.,  265. 
v.  RuSsell,  ii.,  1087. 
v.  Ruston,  i.,  225. 
v.  St.  Benedict,  ii,,  669,  670. 
v.  Scaife,  ii.,  1087. 
v.  Serjeant,  i.,  272. 
v.  Serva.  i.,  247. 
v.  Shaw,  it*.,  1022,  1026. 
v.  Sheeban,  i.,  218. 
v.  Sbellard,  ii.,  809. 
v.  Sheppard,  ii.,  557,  724. 
v.  Shrimpton,  i.,  488. 
v.  Sichoo,  i.,  25  1. 
e.  Simmonsto,  i.,  917. 
v.  Simons,  ii.,  897.  973. 
v.  Sippets  (Elizabeth),  ii.,  315. 
v.  Slaney,  i.,  454. 
v.  Sleigh,  i.,  457,  458. 
v.  Smethurst,  ii.,  758. 
v.  Smith,  L,  373,  374,  ii.,  728. 
v.  Sourton,  ii.,  996. 
e.  Sparkes,  ii.,  889,  990. 
v.  Spencer,  ii.,  910. 
v.  Spilsbury,  ii.,  913. 
v.  Stannard,  i.,  489. 
v.  Steel,  i.,  225,  ii.,  897. 
c.  Sterne,  i.,  135. 
«.  Stockton,  634. 
e.  Stokes,  ii.,  601. 
t.  Strand  (The)  Board  of  Works, 

ii,  715. 
v.  Stubbs,  i.,  218,  268. 
t.  Swendsen,  i.,  490. 
v.  Tanner,  ii.,  688. 
v.  Tawell,  ii.,  758. 
c.  Taylor,  i.,  247,  ii.,  910,  1066. 


R.  v.  Teal,  ii.,  941,  942. 
v.  Thistlewood,  ii.,  1066. 
v.  Thompson,  i.,  2G0. 
v.  Tippet,  ii.,  948. 
v.  Tooke  (Home),  i.,  452,  ii.,  810 
v.  Totnes,  i.,  636. 
v.  Travers,  i.,  236,  237. 
v.  Tucker,  i.,  174. 
v.  Turner,  i.,  506,  507,  508. 
v.  Twyning     (The    Inhabitants 

of),  ii.,  602,  603,  C04,  605, 

606,  618. 
v.  Upton  Gray,  ii.,  634,  677. 
v.  Vaughan,    L,  231,   ii.,    1610, 

1039. 
v.  Verelst,  ii.,  602,  632. 
v.  Wade,  i.,  240,  246. 
v.  Walkling,  ii.,  1066. 
v.  Walter,  i.,  600. 
v.  Warickshall,  i.,  134. 
v.  Warringham,  i.,  113,  ii.,  948. 
«.  Watson,  ii.,  1066. 
v.  Weaver,  ii.,  829. 
v.  Webb,  i.,  268. 
v.  Weeks,  i.,  483. 
v.  Welch,  ii.,  904. 
v.  Whalley,  ii.,  765. 
v.  Wheeling,  ii.,  948. 
i).  Whiley,  ii.,  546. 
v.  White,  i.,  72,   246,  247,  391, 

ii.,  758,  948. 
v.  Whitehead,  i.,  139,  205. 
v.  Whitehouse,  ii.,  1087. 
v.  Whiting,  i.,  489. 
v.  Wigley,  ii.,  1024. 
v.  Wild,  ii.,  947,  989. 
v.  Wilkes,  i.,  218,  268. 
v.  Williams,  i.,  240,  ii.,  874. 
v.  Wilson,  i.,  373,  ii.,  810. 
v.  Winifred  and  Gordon, 
v.  Wood,  i.,  487. 
v.  Wright,  ii.,  670,  715. 
v.  Wylie,   ii.,  546 
v.  Yates,  ii.,  1023,  1024. 
v.  Young,  ii.,  1022. 
Reynolds  v.  Reynolds,  ii.    611. 


TABLE     OF    CASES. 


1 1 27 


Riccard  v.  The  Tnclosure  Commis- 
sioners, ii.,  1055. 
Rich,  de  Rayriham,  ii.,  939. 
Richards  v.  Bluck,  ii.,  639. 
v.  Lewis,  ii.,  814. 
Richardson's  case,  i.,  327,  540. 
Richardson  v.  Willis, 
Rickards  v.  Muuiford,  ii.,  597. 
Ridgway  v.  Ewbank,  i.,  498,  503. 
1).  The  Hnngerford  Mar- 
ket Company,  i.,  137. 
Ridley  v.  The  Plymouth  Grinding 

Company,  ii.,  904. 
Rig-lit,  Lessee  of  Cater,  v.  Price,  i., 

638. 
Rist  v.  Hobson,  ii.,  637. 
Rivers  v.  Hague,  ii.,  1075. 
Roberts  v.  Allatt,  i.,  199. 

v.  Bethell,  ii.,  686. 
v.  Hayward,  ii.,  683. 
v.  Karr,  ii.,  670. 
Rubins  v.  Maidstone    (Lord),    ii., 

926. 
Robinson  v.  Bland,  ii.,  711. 

v.  Robinson,  ii.,  75:5. 
Robson  v.  Crawley,  ii.,  1054. 

v.  Rocke,  i.,  471. 
Rodwell  v.  Redge,  ii.,  618. 
Roe  v.  Hawkes,  i.,  180. 
v.  Popham,  ii.,  600. 
Roe   d.    Haldane   v.    Harvey,    ii., 
702. 
d.  Johnsons.  Ireland, ii.,  659, 

675. 
d.  Bree  v.  Lees,  ii.,  682. 
d.  Eberall  v.  Lowe,  ii.,  677. 
d.   Bruue    v.    Rawlings,    ii., 

459. 
d.  Jordan  v.  Ward,  ii.,  683. 
Rogers  v.  Brooks,  ii.,  CtiO. 
Rolfes.  Dart,  ii.,  827. 

v.  Hampden,   i.,  169,  178. 
Roscommon's  (The  Earl  of;  claim, 

ii.,  676. 
Rose  v.  Calland,  ii.,  676. 
Ross®.  Hunter,  ii.,  618,  624. 


Rowbotham  v.  Wilsoj,  ii.,  599. 
Rowe  v.  Brenton,  ii.,  599. 

v.  Grenfel,  ii.,  599. 

v.  Hasland,  ii.,  693. 
Rudd  v.  Champion,  i.,  652. 

v.  Wright,  ii.,  652. 
Rugby  Charity  v.    Merry  weather, 

ii.,  670. 
Rugg  v.  Kingsmill,  ii.,  676. 
Russell's  (Lord  Wm.)  case,  i.,  167, 

171. 
Rust  v.  Baker,  ii.,  692. 
Ryder  v.  Wombwell,  i.,  112. 

St.  Georges  v.  St.  Margaret's,  ii., 

625. 
St.  Mary  Magdalen  v.  Att.  Gen., 

ii.,  676,  681. 
Salisbury    (Marquis     of)    v.    The 

Great  Northern  Railway  Co.,  i., 

715. 
Samson  v.  Tardley,  i.,  101,  167. 
Sanders  v.  Karnell,  ii.,  904. 
Sanderson    ».    Collman,    ii.,    930, 

935. 
Sandwell  v.  Sandwell,  i.,  423. 
Suph.  v.  Atkinson,  i. ,  470. 
Sattertbwaite  v.  Powell,  ii.,  698. 
Saunders®.  Davies,  i.,  117. 
Sawbridge  v.  Benton,  ii.,  676. 
Saye   and    Sele    (Barony   of),    i., 

626. 
Sayer  v.  Glossop,  i.,  453,  ii.,  824, 

829. 
Scales  v.  Key,  ii.,  653. 
Scholes  v.  Hilton,  ii.,  618. 
Schoning's  (Maria)  case,  ii.,  966. 
Schoobridge  v.  Ward,  ii.,   654 
Schwartz's  (Jacob)  ease,  L,  227. 
Scoones  v.  Morrell,  ii.,  716. 
Scott  v.  Walker,  ii.,  1051. 
Selfe  v.  Isaacson,  ii.,  1067. 
Sellen  v.  Norman,  ii.,  690. 
Sells  v.  Hoare,  i.,  249. 
Selwyn    (In     the    goods    of),    H., 
698. 


1128 


TABLE     OF    CASES. 


Shadwell  v.   Shadwell,    ii.,    1050, 

1051,  1052. 
Shaftesbury's    (Earl  of))   case,  i., 

199. 
Sharpe's  (Jolm)  case,  ii.,  959. 
Shatter  ».  Friend,  ii.,  1029. 
Shaw's  (William)  case,  i.,  359. 
Shearer  v.  The  State,  L,  512. 
Shed den  v.  Patrick,  ii.,  1006. 
Sheffield    v.   Ratcliffe,   i.,   37,  ii., 

563. 
Shelling  v.  Farmer,  ii.,  829. 
Shephard  v.  Payne,  i.,  594,  649. 
Sherratt  v.  Monntford,  i.,  427. 
Shilling  v.  The  Accidental  Death 

Company,  ii.,  840. 
Short  ».  Lee,  ii.,  633,  852. 
».  Mercier,  i.,  189. 
Shotter  v.  Friend,  ii.,  1029. 
Shufflebottom  v.  Allday,  ii.,  892. 
Shuttleworth   v.   Le  Fleming,  ii., 

667. 
Sichel  v.  Lambert,  ii.,  624. 
Sidebottom  v.  Adkins,  i.,  191, 194. 
Sidney's  (Algernon)  case,  i.,  171. 
Sidney  v.  Sidney,  ii.,  618,  625. 
Sillick  v.  Booth,  ii.,  698. 
Simmons  v.  Lillystone,  i.,  137. 
v.  Rudall,  i.,  432,433. 
Simms  v.  Henderson,  ii.,  622. 
Simpson  v.  Dendy,  ii.,  597,  716. 
v.  Gutteridge,  ii.,  672. 
v.    The   Accidental   Death 

Insurance  Company,  i.,  932. 
Sinclair  v.  Baggaley,  ii.,  684,  685. 
Slane  Peerage  case,  ii.,  828. 
Slatterie  v.  Pooley,  ii.,  902,  904, 

906. 
Smarle  v.  Penhallow,  ii.,  692. 
Smith's  (Mary)  case,  ii.,  969. 
Smith  ».  Battens,   ii.,  684. 
v.  Blakey,  ii.,  852. 
v.  Blandy,  ii.,    896. 
v.   Davies,  i.,  503. 
v.  Great    Western  Railway 

(.  (  mpany,  ii.,   1054. 


Smith  v.  Martin,  ii.,  926. 

v.  Morgan,  i.,  423. 

v.  Prager,  i.,  216. 

v.  Sainsbury,  i.,  467. 

v.  Stapleton,   ii. , 688. 

v.  Tebbitt.i.,  232. 

v.  Winter,  ii.,  1050. 
Sinout  v.  Ilbery,  ii.,  688. 
Smyth  v.  Wheeler,  ii.,  616. 
Sneider  v.  Mangino,  ii.,  1051. 
Solita  v.  Yarrow,  i.,  458. 
Somerset  (Duke  of)  v.  Fogwell,  iL 

716. 
Soward  v.  Leggatt,  i.,  503,  504. 
Sparke  v.  Middleton,  i.,  291. 
Sparkes  v.  Barrett,  i.,  57. 
Sparrow  v.  Farrant,  i.,  459.  463. 
Spenceley  v.  De  Willott,  i.,  482. 
Spry  v.  Flood,  ii.,  660. 
Stafford's    (Humphrey)    case,    ii., 
1061. 
(Lord)  case,  i.,  298,  ii., 

10S0. 
(Viscount)      case,     ii., 
1035. 
Stafford  (Viscountess)  v.  Llewellin, 

ii.,  677. 
Stamford  (Earl  of)  v.  Dunbar,  ii., 

669. 
Stanger  v.  Searlc,  i.,  455,  456,465, 

467,  468. 
Stanley  v.  Bernes,  ii.,  710. 
Staph-ton  ».  Crofts,  i.,  140,  276. 
Stapylton  v.  Clough,  ii.,  852. 
State  (The)  v.  Crowell,  i„  512. 

i).  Morrison,   i.,  512. 
Steadman  v.  Aruen,  ii.,  1050. 

v.  Duhamel,  ii.,  940. 
Steel*.  Prickett,  ii.,  716. 
Stevens  v.  Webb,  i.,  134. 
Steward's  case,  i.,  237. 
Stewart  v.  Canty,  ii.,  683. 
Stindt  v.  Roberts,  ii.,  1086. 
Stobart  v.  Dryden,  ii.,  855. 
Stockdale  v.    Hansard,  i.,  125,  ii., 

co;:. 


TABLE     OF    CASES. 


1 1 29 


Stocken  v.  Collin,  ii.,  685. 
Stocks  v.  Booth,  ii.,  660. 

•    v.  Ellis,  i.,  150. 
Stone  v.  Grubhani,  ii.,  685. 
Stones  v.  Byron,  L,  287,  289,  290, 

293,  294. 
Sttot  v.  Stott,  ii.,  717. 
Strafford's  (Earl  of)  ease,   i.,  298. 
Straker  v.  Graham,  ii.,  983. 
Strecten  v.  Black,  ii.,  1088. 
Strecter  v.  Bartlett,  i.,  415. 
Stroughill  v.  Buck,  ii.,  929. 
Summers  0.  Rawson,  i.,  57. 
Sunderland      Marine      Insurance 

Company  0.  Kearney,  i.,  506. 
Surrey  Canal  Company  v»  Hall,  ii., 

670,  671. 
Sussex  Peerage  Case,  ii.,  850,  852, 

875. 
Sutton  v.  Darke,  i.,  480. 

v.  Johnstone,  ii.,  621. 
Swendsen's  case,  i.,  272. 
Swinnerton  0.    Stafford  (Marquis 

of),  ii.,  595. 
Sykes  (In  the  goods  ofj 

Talbot  v.  Hodson,  ii.,  637. 
Taylor  v.  Cook,  ii.,  652. 

0.  Dip'ock,  ii.,  688. 

v.  Foster,  ii.,  985,  986. 

d.    Atkyns    v.    Horde,    ii., 
6:)8. 
Temper' cy  0.  Willett,   ii.,  1052. 
Tenny  d.  Whinnett  v.  Jones,  ii., 

t  J. 

Tewkesbury  (Bailiffs  of)  0.  Brick- 

nell,  ii.,  652. 
Tharpe  0.  Gisburne,  i.,454. 

v.  Sta  hvood,  ii.,  565. 
Thol  0.  Leask,   ii.,  1055. 
Thomas's  case,  i.,  166.' 
Thomas  0.  Cook,  ii.,  616. 

0.  David,  i.,  295. 

0.  Rus-ed,  ii.,  840. 

0.  Thomas,  i.,  465. 
Thompson  0.  Hopper,  ii.,  712. 


Thompson  0.  Leach,  ii.,  616. 
Thomson  0.  Austen,  ii.,  896. 
Thorne    0.    Rolfe,    ii.,    692,    695, 

1032. 
Throckmorton's  (Sir  N.)  case,  ii., 

170. 
Throgmorton  0.  Walton,  ii.,  692. 
Thunder  0.  Warren,  ii.,  904. 
Thurtell's  case,  ii.,  782. 
Tindal  0.  Brown,  ii.,  557,  595. 
Toleman  0.  Portbury,  ii.,  509. 
Toll  0.  Lee,  ii.,  ' 
Toomey  0.  The  Brighton  Railway 

Company,  i,  112. 
Toosey  v.  Williams,  ii.,  685. 
Townson  0.  Tickell,  ii.,  615. 
Tracy  Peerage   case,    i.,  471,   ii., 

823,  874. 
Trevibau  or  Trevivan  v.  Lawrence, 

ii.,  936. 
Trowel  0.  Castle,  i.,  432. 
Tupling  0.  Ward,  ii.,  1054. 
Turton  0.  Turton,  ii.,  COO,  688. 

Underwood  0.  Wing,  ii.,  698. 
United  States  0.  Lender,  ii.,  940. 

Vaise  0.  Dclaval,  ii.,  983. 
Vander  Donckt  0.  Thellusson,  ii., 

875. 
Verry  0.  Watkins,  i.,  485. 
Vitli  v.  Smith,  ii.,  1053. 
Villars  (Ex  parte),  i.,  611. 
Villeboisnet  0.  Tubin,  ii.,  1054. 
Volant  v.  Soyer,  i.,  404. 
Vooglit  v.  Winch,  ii.,  659. 
Vowles  0.  Millar,  ii.,  716. 

Waddington  0.  Roberts,  ii.,  634. 
Wadsworth    v.     The     Queen     ol 

Spain,  ii.,  708. 
Wakeman  0.  Lindsey,  i.,  262. 
Waldron  0.  Ward,  i.,  291. 
Walker's  case,  i.,  250. 
Walker  v.  Goc.  i.,  514. 
Wall's  (Joseph;  case,  ii.,  619. 


ii  3Q 


TABLE     OF    CASES. 


Wallwyn  v.  Lee, 
Walter  v.  <  In  59,  GOO. 

Walton®.  Sh   .  )40. 

Warburton    .  i.,  606. 

Ward  ®.  Pomfr 

V.  War 
Warren  8.  An.lei .-- >n.  L,  452. 

v.  Warren,  ii.,  685. 
Waring  v.  Waring,  i.,  231,  23?. 
Washington  v.   Bry  ncr,    ii.,    G90, 

691. 
Waterford    Railway    Company   v. 

Pidcock,  i..  177. 
Watkiust).  is,  ii.,  G18. 

Watson  v.  Clark,  ii.,  712. 
Webb  v.  Ross,  i.,  515. 
Webster's  case,  L,  833. 
Webster  v.  Birchmore,  ii.,  692. 
Wedgwood  v.  Hart,  i.,  509. 
Welch  v.  Seaborn,  ii.,  G15. 
Welcome  v.  Upton,  ii.,  052,  653. 
Weld  v.  Hornby,  ii.,  6 
Welstead  v.  Levy,  i.,   113. 
Wenthworth  v.  Lloyd,  ii.,  986. 
West's  (Rebecca  ii.,  970. 

West  v.  Blakeway,  i., 
Western    Bank    of     Scotland     ®. 

Needell,  ii.,  934. 
Whateley  o.  Crow  tor.  ii.,  1055. 
White®.  Foljarnbe,    ii.,  031,    G76, 
678. 

».  Greenish,  ii.,   933. 

®.  Hill,  i.,  2 

v.  Lady  Lincoln,  ii.,  702. 

v.  Lisle,  ii.,  654. 

v.  Wilson,  i.,  689. 
Whiteley  v.  King,  ii.  684. 
Whyman  v.  Garth,  i.,  413,  ii.,  906. 

Wicks  v.  Clutterbuck,  ii.,  1086. 

v.  Grove,  i.  52  1. 
Wiles  r.  Woodward,  ii.,  928. 
Wilkinson  v.  Payne,  ii.,  591. 

v.  Proud,  ii.,  644,  666. 
Williiims  v.  The  East   India  Co., 
ii.,  618. 


Williams  v.  Eyton,ii.,  676. 

8.  Thomas,  ii.,  1068. 
v.    Williams,     ii.,     753, 
973. 
William  v.  Worrall,  i.,  452. 
Wilson  v.  Allen,  ii.,  676,  G77. 
®.  Hodges,  ii.,  692. 
v.  Rastall,  ii.,  985,  990,  996. 
8.  Tummon.  ii.,  5 
Wiltshire*.  Sidford,  ii.,  716. 
Wing  v.  Angrave,  ii.,  6 
Winsor  v.  R., 
Winterbottom  8.  Lord   Derby,  ii., 

658,  671. 
Wolley  v.  Brownhill,  ii.,  G75. 
Wolverhampton      Railway     Com- 
pany v.  Hawksford,  ii.,  1054. 
Wood®.  Guuston,  i.,  118,  179. 
v.  Leadbitter.  i.,  423. 
v.  Pringle,  ii.,  1068. 
.  Veal,  ii.,  671. 
Woodward  v.  Buchanan,  ii.,  4S3 
Woolcombe  8.  Ou  Id  ridge, 
Worrall  v.  Jones,  i.,  231. 
Worth  v.  Gilliug,  i.,  137. 
Wotton  (In  the  goods  of) 

v.  Gavin,  ii.,  632. 
Wright  v.  Holdgate,  ii.,  G26,  996 
8.  Howard,  ii.,  655. 
8.  Lainson,  ii.,  685. 
».  Monty,  ii.,  1052. 
®.    Netherwood    (or    8h 

muda),  ii.,  698. 
8.  Smithies,  ii.,  593. 
Wrotesley  8.  Adams,  ii.,  688. 
Wyllie  v.  Mott,  ii.,  G59. 

Yardley  v.  Arnold,  i.,  139,  205. 
Yewin's  case,  ii.,  1080. 
Yorke  v.  Brown,  ii.,  684. 
Young   v.    The   Master   of    Clara 
Hall,  ii.,  854. 

8.  Homier,  i.,  469. 

v.  Raincock,  ii.,  929. 

v.  Slaughtered,  i.,  236. 


TABLE 


OF 


AMERICAN    CASES    CITED. 


Aaron  ®.  State,  ii.,  907,  908. 

State  v.,  ii.,  915. 
Abeles  ®.  Cohen,  i.,  52. 
Abbot,  Brand  v.,  i.,  258. 
Abbott,  Norton  ».,  ii.,  1047,  1048. 

North  Bank  v.,  i.,  450. 
Abignye  v.  Clifton,  i.,  484. 

v.  Ponaeroy,    ii.,  637,  638, 
684. 
Abrarns  ®.  Smith,  i.,  825. 
Acklen,  Hall  v.,  ii.,  531. 
Ackley  ®.  People,  i.,  490. 
Adams  ®.  Barnes,  ii.,  925. 

City  Bank  v.,  i.,  428. 
®.  Clark,  ii.,  637. 
®.  Field,  i.,  438. 
®.  Fitzgerald,  i.,  812. 
Hyatt®.,  i.,  479. 
v.  Lloyd,  i.,  191. 
®.  State,  i.,  393. 
Adirondack    Co.,    Wicks    ®.,    ii., 

579. 
Administrator  Public,  Allen  v.,  ii., 

689. 
/Etna  Insurance  Co.,  Fowler  ®  ,  i., 

490. 
Agricultural   Bank,   Routh  ®.,  i., 

400. 
Ah  How,  People  v.,  ii.,  908. 
Ah  Ki,  People®.,  ii.,  910. 
Aiken,  Richmond  v.,  i.,  499. 

®.  State,  ii.,  907. 
Akin  v.  Drummond.  i.,  421. 
Alcox,  Shelton  ».,  ii.,  926. 
Alderson  v.  Bell,  i.,  412. 
Aldridge,  Palmer  v.,  i.,  412. 


Alexander®.  Burnham,  i.,  411. 
®.  Foreman,  i.,  826. 
Alexandria   Bank,   Taylor  ®.,    L, 

34. 
Albin,  Peacock  ®.,  i.,  258. 
Alexandrer,  Webb  ».,  i.,  826. 
Alexandria  Bank,  Young  ®.,  i. ,  34. 
Alford,  State  ».,  i.,  395. 
Alfred  v.  State,  ii.,  909. 
All,  Holmes  ».,  i.,  450. 
Allard,  Leffler  ®.,  i.,  478. 
Allatt,  Roberts®.,  i.,  199. 
Allegheny  v.   Nelson,    i.,  412,   ii., 

851. 
Alger,  Eaton  ».,  i.,  421,  428. 
Allen,  Barnes  v.,  i.,  499. 

Barbat  ».,  i.,  140. 

Central  Bank  v.,  i.,  398. 

®.  Dunham,  i..  34. 

Hall  ».,i.,  417. 

Goodrich  ».,  i.,  259. 

v.   M'Neel,  i.,  399. 

Osborn  v.,  ii.,  693. 

v.  Parish,  i.,  813. 

v.  Prat  her,  i.,  490. 

®.  Public  Administrator, ii, 
689. 

®.   Sovvcrby,  ii.,  630. 

».  Winston,  ii.,  932. 
Allesbrook  ®.  Roach,  i.,  465,  467, 

468. 
Allis  v.  Day,  ii.,  878. 
Alpin  ®.  Morton,  ii.,  988. 
Alston,  Mason  ».,  ii.,  927. 
Alter  v.  Berghaus,  i.,  450. 
Altoneyer,  Knapp  v.,  i.,  414. 


1132 


AMERICAN    CASES    CITED. 


Alwell  v.  Grant,  i.,  393. 
Ainarine,  McCaskle  v.,  i.,  450. 
American   Bauk,     Huntington   «., 
ii.,  928. 
Express  Co.,  Booman  »., 

ii.,  719. 
&c.  Ins.  Co.  v.  Iselt,  i., 

728. 
&c.  Ins.  Co.,  Dean  v.,  i., 

r-nrr 

Amos,  Dim  v.,  ii.,  987. 

v.  Hughes,  i.,  498. 
Amoskeag,  Arc.  Co.,    Eastman   v., 

i.,  403. 
Anderson,  Re,  i.,  114. 

v.  Anderson,  i.,  189,  410. 

v.  Bacon,  i.,  420. 

Bridge     Co.    v.    Apple- 
gate,  i..  398,  ii.,  819. 

v.  Folger,  i.,  410. 

Graham  v.,  i.,  411. 

Harvey,  v.  ii..  847. 

v.  Long,  i.,  490. 

v.  Maberry,  i.,  212. 

Martin  v.,  ii.,  986. 

Meakim  v.,  i.,  816. 

Redmond  ».,  ii.,  635. 

c.  Root,  i.,  403. 

Sadler  v.,  ii.,  622. 

v.  Smith,  ii.,  621. 
Allen  v.  Sowerby,  i..  420. 
Angel  ®.  State,  i.,  729. 
Anderson,  Thrasher  v.,  i.,  421. 

v.  Wilson,  i.,  258. 
Andrew  v.  N.    Y.  Bible   &  Prayer 

Book  Soc,  ii.,  628. 
Andrews,  Aulkbulkley  v.,  i.,  52. 

Commonwealth     ©.,    i., 
391. 
Andrews,  Crawford  v.,  ii.,  873. 

v.  Lyon,  ii.,  934. 

Moore  v.  i.,  450. 
Androscoggin  Bauk  v.,  Kimball,  ii. 

617. 
Angell,  Martin  v.  ii.,  033. 
Angle,  Whitniarsh  v.,  ii.,  879. 


Anthony  v.  Atkinson,  i.,  420. 
v.  State,  i.,  114,  115. 
Applegate,    Anderson  Bridge  Ccx. 

v.,  i.,  398,  ii.,  819. 
Appleton   v.    Appleton,   ii.,   1047 
1048. 
Goodwin®.,  i.,  34,  409. 
Thornton  v.,  ii.,  568. 
Arbuter®.  Day,  i.,  161,  419. 
Ardesco  Oil  Co.  v.  Gilson,  ii.,  867 
Armstrong  v.  Burrows,  ii.,  879. 
v.  Clark,  ii.,  1047. 
».  McDonald,  ii.,  846. 
v.  Timmons,  ii.,  813. 
United  States  v.,  i.,  393, 
394. 
Archibald  v.  Davis,  i.,  414. 
Ardesco  Oil  Co.  v.  Gilsen,  i.,  304 

v.  Arnold,  ii.,  1006. 
Arnold  v.  Coinman,  ii.,  932. 
McNeill  v.,  ii.,  841. 
People  «.,  i.,  393. 
Arredondo.United  States,®.,  ii.  623. 
Arthur  v.  Gale,  L,  402. 
Artz,  Oelrichs  v.,  i.,  478. 
Ash.  McGill  ».,  ii.,  848. 
Ashbrook,  Buck  v.,  i.,  189. 
Ashbury  v.  Sanders,  ii.,  692. 
Ashby,  Dukey  v.,  i.,  819. 
Ashley,  Blight  v.,  i.,  402. 
Hopper  o.,  i.,  450. 
Askew,  Hays  v.,  ii.,  930. 
Pope  v.,  i.,  438. 
Astor,  Ayman  v.,  i.,  33. 
Atchison,  Arc.  R.  R.  Co.  v.  Black- 
shire,  ii.,  609. 
Atchison,  Ac.  R.  R.  Co.    v.  Com- 
missioners, ii.,  999. 
Atherton  v.  Tilton,  i.,  477. 
Atkins  v.  State,  i.,  395. 
Atkinson,  Anthony  v.,  i.,  420. 
v.  Graham,  i.,  490. 
People  v.,  ii..  986. 
Atlantic    Silk     Co,     Xarragansett 

Bank  ».,  i..  399. 
Attbury.  Payne  ».,  ii.,  929 


AMERICAN    CASES     CITED. 


1133 


Attorney  general   v.    Pearson,   ii., 

628. 
Attorney  general   v.  Parnther,    i., 

394. 
Atwater  v.  Clancy,  ii.,  868. 
v.  Schenck,  i.,  409. 
Atwell  <o.  Miller,  ii.,  862. 
Aubucbon,  "Wynne  v.,  i.,  826. 
Aulkbdlkley  v.  Andrews,  i.,  52. 
Austin,  Maverick  ®.,  ii.,  591. 
v.  State,  ii.,  908. 

v.  Swank,  i.,  477. 
Autauga  County  v.  Davis,  i.,  479. 
Avery,  Millers.,  i.,  410. 
Ayer,  Kermott  v.,  i.,  408. 

State  v.,  ii.,  984. 
Aymans  v.  Astor,  i.,  33. 
Baalam  v.  State,  ii..  551. 
Babbott  v.  Thomas,  i.,  278. 
Babbeit  v.  Young,  i.,  420. 
Babcock  v.  Booth,  i.,  278. 

Ripley  ».,  ii.,  689. 
Bach  v.  Cobn,  ii.,  53:]. 
Backus,  People  v.,  ii.,  985. 
Bacon,  Anderson  v.,  i.,  420. 

v.  Charlton,  i.,  479. 

Cowlese.,  ii.,  932. 

Great  Western    R.   R.  Co. 
v.,  i.,  499. 

Hill  v.,  i.,  409. 

v.  Smith,  ii.,  688. 
Badger,  Betts  «.,  i.,  403. 
v.  Story,  i.,  479. 
Bagby,  Koltwitz  v.,  ii.,  862. 
Bagioli,  Theriott  v.,  ii.,  718. 
Bain  v.  Clark,  ii.,  862. 
Baker,  Bent  v.,  i.,  175,  217. 

Courtney  v.,  ii.,  1046. 

Cherry  v.,  i.,  411. 

Courtney  v.,  i.,  476. 

Dubois  v.,  i.,  450,  451. 

v.  Haines,  i.,  451. 

Hasbrock  v.,  ii.,  1046. 

v.  Mygatt,  i.,  411,  450. 

People  v.,  ii.,  984. 

Scott  ».,  i.,  403. 


Baker  v.  Seeley,  ii.,  932. 

State  «.,  ii.,  9S2,  983. 
Bailey  t>.  Clayton,  ii.,  718. 
v.  McDowell,  i.,  34. 
State  v.,  i..  411. 
Baird,  Xave  v.,  ii.,  988. 
Baker,  Vining  v.,  ii.,  579. 
Bailey,  Cocke  v.,  i.,  419. 

V.  Wood,  ii.,  851. 
Baintree  v.  Hingbam,  ii.,  847. 
Baldwin,  Beach  v.,  i.,  826. 
Menitt  v.,  ii.,  635. 
Smoot,  v.,  i.,  34. 
v.    Western    R.   R.,  ii,, 
841. 
Ball  v.  Benjamim,  i.,  420. 
Burney  v.,  ii.,  694. 
Pell  ».,  ii.,  699. 
Ballard  v.  Lockwood,  i.,  33. 
Ballette,  Lincoln  v.,  i.,  411. 
Ballew  v.  Clark,  ii.,  689. 
Ballou  v.  Tilton,  i.,  259. 

White  ».,  ii.,  876. 
Bank  of  Augusta  v.  Earl,  ii.,  709. 
Baltimore,  &c,  Steamboat    Co.   v. 

Brown,  i.,  421. 
Bancroft  v.  G rover,  i.,  420. 
Bank  of  South  Carolina  v.  Brown, 

i.,  398. 
Bank  v.  Wallastown,  ii.,  932,  937. 
Bankston,  McMichael  v.,  i.,  417. 
Banning,  Jewett  ».,  i.,  395. 
Bannister,  Stephenson  v.,  i.,  410. 
Banta  v.  Clay,  ii.,  841. 
Barbate.  Allen,  i.,  140. 
Baptist  Church,  Lucas  v.,  ii.,  567, 

568. 
Baptist.  &c.    Soc,    Chaffer  v.,    ii., 

10211. 
Baptist  Soc,  Collier  v.,  i.,  412. 
Baptiste  v.  De  Volembrun,  i.,  410. 
Barber,  Dennis  ©.,  i.,  399. 

v.     Hartford     Bank,    ii., 

1074. 
d.  Lyon,  i.,  404. 
p.  Merriam,  i.,  479. 


1 134 


AMERICAN    CASES     CITED. 


Barbin  t.  Gas  paid,  i.,  421. 

Holmes  v.,  ii.,  986. 
Barbour,  Ditquin  ».,  i.,  478. 
Barcus  v.  State,  i.,  394. 
Barelli  v.  Lytic,  ii.,  G87. 
Barker?'.  Coleman,  ii.,  851. 

Orayclmnd  v.,  i.,  175,  285. 
v.  Barker,  i.,  402. 
v.  McAuiey,  i.,  189. 
Omichund  ».,  i.,  70,  284. 

Wood  v.,  i.,  478. 
Barkley,  Beall  v.,  ii.,  900. 
Barnard,  Pierrepontfl.,  ii.,  924. 
Barney,  White  ».,  i.,  400. 
Harnes,  Adams  v.,  ii.,  925. 

v.  Allen,  i.,  499. 

Marcy  v.,  i.,  304,  ii.,  874. 

Cornell  ».,  i.,  259. 

McKeone  v.,  i.,  438. 

Mills  ».,  i.,  827. 
Barnet  Bell  ».,  i.,  408. 
Barnett,  Kay  wood  v.,  ii.,  846. 

Lasselle  v.,  ii.,  932. 
v.  People  i.,  114. 
Murphy  v.,  ii.,  930. 
Pepper  ».,  ii.,  878. 
Barney,  Thayer  v.,  i.,  402. 

White  v.,  i.,  402. 

Whiting  ».,  ii.,  987. 
Baron,  State  ».,  i.,  392. 
Barre,  Ex  parte,  ii.,  982. 
Barrett,  in  re,  i..  ;J93. 

King  o.,  ii.,  986. 
Barringer  <•.  Barringer,  i.,  189. 
Barrett,  Welsh  v.,  i.,  450. 
Barrington,  Pearson  v.,  i.,  411. 
Bartle  v.  Vasbury,  i.,  421. 
Bartlett,  State  v..  i.,  202,  392. 
Barton  v.  Gledill,  i.,  278. 
Barry  v.  Galvin,  ii..  1047. 

People  ».,  i.,  394. 
Barton  v.  Mumnian,  i.,  812. 
Bascadore,     United   States  v.,  ii., 

907. 
Basshor  v.  Forbes,  i.,  419. 
Batclielder,  Battles  ».,  i.,  478. 


Batchelder  v.  Hazleton  v.,  Ii.,  934. 
Battelle,  Lincoln  v.,  i.,  34. 
Battles,  Brain  tree  v.,  i.,  816. 
Baugh,  Gregory  v.,  i.,  499. 
Baugham  v.  Graham,  i.,  34. 
Bartin  v.  Kane,  i.,  402. 
Barnum  v.  Hackett,  i.,  478. 
Barrows  v.  Downs,  i.,  304. 
Basshor  v.  Forbes,  i.,  161. 
Batchelder  v.  Kinney,  i.,  259. 
Battles  v.  Batchelder,  i.,  478. 
Bauerman  v.  Radenius,  i.,  160. 
Baxter,  Ex  parte,  i.,  i8t. 
Bevens  v.,  i.,  410. 
Baylys  v.  Chubb,  i.,  412. 
Beach  v.  Baldwin,  i.,  826. 

1>.  Workman,  i.,  411. 
Beal,  Crawford  o.,  ii.,  893. 
Beall  v.  Dearing,  i.,  414,  ii.,  814. 
Beale's   Executrix,    Haun  v.,    ii., 

559. 
Beam  v.  Link,  ii.,  983. 
Bean  v.  Brings,  i.,  410. 
Beates  v.  Retallick,  i.,  399. 
Beauchamp  v.  Ludd,  i.,  410. 
Beall  v.  Barkley,  ii.,  900. 
Beard,  Duncan  v.,  i.,  414. 
Bean,  Coopers.,  ii.,  567,  568. 

Farrell  v.,  i.,  421. 
Beatty  «.  Michorn,  ii.,  643. 
Beazly,  Little  v.,  i.,  451,  ii.,  875. 

Mayson  v.,  i.,  402. 
Beck,  Dudley  «.,  ii.,  987. 
Bedbury,    United    States  Express 

Co.  ».,  ii.,  934. 
Bedell  v.  Long  Island  R.  R.  Co.,  b, 

304. 
Beebe,  Russell  v.,  ii.,  62?,. 
Shaw  v.,  ii.,  933. 
State  v.,  ii.,  984. 
Beecher  v.  Pannele,  ii.,  850. 

Tilton  «.,  i.,  189,  278,  ii., 
995. 
Beechey,  Goblet  v.,  I,  880. 
Beede,  Richardson  v.,  i.,  428. 
Beeman,  Myres  ».,  ii.,  1004. 


AMERICAN    CASES    CITED. 


1135 


Bere  v.  Fleming,  ii.,  1006. 
Beers,  Falkner  v.,  i.  398. 
Beets  v.  State,  i.,  117. 
Beirne,  Megee  v.,  ii.,  1004. 
Belcher  v.  Connor,  i.,  304. 
Belden,  Whitney  v.,  i.,  928. 
Bell,  Alderson  ».,  i.,  412. 
v.  Barnet,  i.,  408. 
v.  Chandler,  i.,  404. 
Cross  v.,  i.,  403. 
v.  McCawley,  i.,  401. 
v.  Richmond,  ii.,  1047. 
v.  Woodman,  i.,  420. 
v.  Young,  ii.,  687. 
Bellamy,  Redman  ».,  ii.,  929. 
Bellas  v.  Levan,  i.,  414. 
Belief onte,  &c,  Bank  v.  McMain- 

gle,  ii.,  685. 
Bellis,  Re.,  ii.,  987. 
Bellotti,  Rejourn  ».,  ii.,  875. 
Bemis  v.  Charles,  i.,  403. 
Bench  v.,  i.,  476. 
v.  Jennings,  ii.,  559. 
v.  Kyle,  ii.,  1048. 
Ben  v.  State,  i.,  115. 
Bench  v.  Bemi?,  i.,  476. 
Benham,  Sheldon  v.,  ii.,  880. 
Bennett,  Fry  v.,  ii.,  567. 
v.  Hall,  ii.,  1048. 
Hawley  v.,  i.,  414. 
Joannes  v.,  i.,  401. 
Kilburn  ».,  ii.,  687. 
People  v.,  i.,  391. 
v.  State,  i.,  490. 
v.  Walker,  i.,  401. 
v.  State,  ii.,  984. 
Bennin?,  United   States  Bank   v., 

ii.,  930. 
Benham,  State  «.,  i.,  730. 
Benjamin,  Ball  v.,  i.,  420. 
Bennefield  v.  Ilypres,  i.,  189. 
Bennoist  v.  Darby,  ii.,  841. 
Bent  a.  Baker,  i.,  175,  217. 
Bentley,  Longwell  v.,  ii.,  922. 
Benton,    Williams  v.,    i.,  398,  ii., 
819. 


Benton,  State  v.,  i.,  729. 
Berder,  Dean  v.,  i.,  398,  ii.,  819. 
Bergen  v.  People,  i.,  242. 
Berghaus,  Alter  v.,  i.,  450. 
Berick,  Phillip-  v.,  ii.,  1005. 
Bertiner  v.  ^Yaterloo,  i.,  411. 
Bertrand,  State.  ?■.,  i..  393,  394. 
Betal  v.  Mon»in,  ii.,  927. 
Berry  v.  Waring,  ii.    862. 
Bethune,  Murray  v.,  i.,  478. 
Betts  v.  Badger,  i.,  403. 
Jackson  c,  i.,  812. 
Wilson  w.,  i.,  414. 
Bevens  v.  Baxter,  i.,  410. 
Bidwell,  Cook  ».,  ii.,  1047. 
Bigelow,  Lord  v.,  ii.,  926. 
Clark  v.,  ii.,  879. 
Billings  v.  Billings,  L,  428. 
Bullard  v.,  ii.,  900 
Billingsley  v.  Dean,  i.,  410. 
Bilyen,  Hunter  v.,  i.,  421. 
Binncy  v.  Ham,  ii.,  846. 
Binns  v.  Suite,  i..  :)\',:}. 
Birchrleld  c  Bonham,  i..  815. 
Bird  v.  State,  i.,  394. 
Birdsong,  MacLaren  v.,  i.,  400. 
Birger,  Dreisbacb  v.,  i.,  812. 
Bishop  v.  Jones,  i.,  409. 

v.  Spening,  i.,  304,  ii.  891. 
v.  State,  1.,  451. 
v.  YV   Ich,  i.,  258. 
Bissett,  Ketland  v.,  i.,  490. 
Bivens  v.  Statu,  i., 
Black,  Burton  v.,  ii..  932. 

v.    Columbian  Ins.  Co.,   i. 

420. 
v.  Lamb,  ii.,  847. 
State  v.,  i.,  478. 
V.  Thornton,  i.,  479. 
Turnley  v.,  ii.,  595. 
Blackburn,  Craufurd  v.,  ii.,  846. 
v.  Crawfords,  ii.,  988. 
v.  State,  i.,  738. 
Blackman,  Brougliton  v.,  i.   411. 
Blackshire,  Atchison,    &c,  R.    R 
Co.  v.,  ii.,  609. 


1136 


AMERICAN    CASES    CITED. 


Black well  v.  ITamilton,  i.,  476. 
Blagg  V.  Hunter    ii.,  851. 
Blair  v.  Coll'man,  ii.,  477. 
Biaisdell  v.  Cowell,  ii.,  624. 
Blaiscl all  0.  Kidder  v.,  i.,  812. 
Blake,  Carpenter  v.,  ii.,  869. 

v.  Flash,  i.,  401. 
Blanchard  v.  Moore,  i.,  420. 

Wendell     v.,    ii.,     643, 
711. 
Blandy,  Ex  parte,  i.,  373. 
Blandsliaw,  Jackson  t>.,  i.,  414. 
Blany  v.  Sargeant,  i.,  499. 
Blevins  V.  Pope,  ii.,  842. 
Bi-ewlett,  Witherspoon  ».,  i.,  259. 
Blight  v.  Ashley,  i.,  402. 
Bliss,  Satterlee  v.,  ii.,  986. 
Blood.  Halsey  v.,  i.,  402. 

v.  Harrington,  i.,  398. 
».  Ridiout,  i.,  478. 
Blount  v.  Robeson,  ii.,  934. 
Boardman,  Taylor  «.,  i.,  410. 

v.  "Woodman,  i.,  490. 
Boatright  v.  Porter,  i.,  490. 
Bob,  Bespublica  v.,  i.,  394. 

v.  State,  ii.,  910. 
Bobe  v.  Stickney,  i.,  816. 
Bodiuc,  People  v.,  i.,  393. 
Boerum,  Wilson  «.,  i.,  114. 
Boffnian,  Hickman  v.,  ii.,  622. 
Bogart  v.  Brown,  i.,  403  . 
Boikom,     Commonwealth    «.,    ii., 

635. 
Boiling,  Evans  v.,  i.,  402. 
v.  Mayor,  ii.,  922. 
Bollman,  Ex  parte,  ii.,  1040. 
Boman  v.  Plunkett,  i.,  451. 
Bond  v.  Hunter,  i.,  478. 
v.  Perkins,  i.,  481. 
Ridgeby  v.,  ii  ,  929. 
Bonesteel  v.  Lynde,  ii.,  1047. 
Bonfante  v.  State,  i.,  392. 
Bonliam,  Birchfield  v.,  i.,  815. 

Phelan  v.,  ii.,  847. 
Bonneau,  Edwards  v.   i. ,  400,   ii., 
820. 


Bonner  v.  Home  Ins.  Co.,  i.,  399 
Booman  v.  American  Express  Co. 

ii.,  719. 
Boone,  &c.Bank«.  Wallace,  i.,  479 
Boom,  People  ».,  i.,  391. 
Borland  v.  Walrath,  i.,  420. 
Borst,  Tomlinson  v.,  ii.,  1046. 
Bostick,  State  ».,  ii.,  915. 
Boston,  Browne  v.,  i.,  398,  ii.,  819. 
Currier  v.,  i.,  478. 
&c.  R.  R.  Co.  v.  Old  Colony 

R.  R.  Co.,  ii.,  877. 
v.  Richardson,  ii.,  844. 
Boswell  v.  Com.,  i.,  394. 
Booth,  Babcock  v.,  i.,  278. 
Bottomly  v.  United  States,  i.,  395, 

420. 
Boullemet  v.  State,  i.,  408. 
Bo  \en,  Commonwealth  p.,  i.,  737. 
Bower,  Strong  v.,  i.,  451. 
Bowie,  Carroll  v.,  ii.,  621. 
Bowman,  Moffett  v.,  ii.,  985. 
v.  Welting,  i.,  820. 
Bowers,  Brower  v.,  i.,  419,  420.423. 

Gordon  v.,  ii.,  851. 
Bowie  v.  City  of  Kansas,  i.,  481 
Bowler  v.  State,  i.,  391. 
Bowman,  Stein  v.,  i.,  278. 

Thomas  v.,  ii.,  934. 
v.  Welting.,  i.,  400. 
v.  Woods,  ii.,  869. 
Bowne,  Mum  ford  v.,  i.,  399. 
Bowtrell,  Alsop  v.,  i.,  284. 
Boyce,  Mullikin  v.,  i.,  812. 
Boyd  v.  Colt,  ii.,  1047. 

Dana  v.,  i.,  480,  ii.,  819. 
Finney  ».,  ii..  1000. 
Markham  v.,  ii.,  630. 
v.  State,  ii.,  914. 
State  v.,  ii.,  983. 
Boyer,  Commonwealth  v.,  i.,  398. 
Boyers  v.  Pratt,  ii.,  610. 
Boyle,  Owen  v.,  i.,  34,  410. 

Thayer  v.,  i.,  490. 
Boyles,  Johnson  v..  i.,  478. 
Boynton  v.  Kellogg,  i.,  490. 


AMERICAN    CASES     CITED. 


ii37 


Brackett  v.  "Wait,  ii.,  900. 
Bradford  v.  Cooper,  i.,  410. 
Bradbury  v.  Dwight,  i.,  402. 
Bradley  v.  Bradley,  ii.,  693. 

v.  Johnson,  ii.,  559, 1000. 
v.  State,  i.,  392,  394. 
Bradner,  Hicks  0.,  i.,  189. 
Brady  v.  Brady,  ii.,  876. 

Seabrook  ■».,  i.,  189. 
Bragg  v.  Coldwell,  i.,  450. 

v.  Massie,  i.,  477. 
Brampton,  Lefferts  v.,  ii.,  1050. 
Braintree  v.  Battles,  i.,  816. 

v.  Higham,  ii.,  923. 
Brakefield  v.  State,  i.,  114,  115. 
Bralich  v.  People,  i.,  259. 
Branahan,  Russell  v.,  i.,  411. 
Branch  Bank,  Prices.,  ii.,  900. 
Brand  v.  Abbott,  i.,  258. 

v.  Butler,  i.,  57. 
Brandon  v.  Cabiness,  i.,  499. 

State  ».,  i.,  392,  394. 
Brandt  v.  Ogden,  ii.,  648. 
Brannon,  People  v.,  i.,  391. 
Turpin  ».,  i.,  477. 
Brashear  v.  Burton,  ii.,  900. 
Brattle  Square  Church  v.  Bullard, 

ii.,  591. 
Brayton  v.  Chase,  ii.,  988. 
Breasted  v.    Farmers'    Loan,    &c. 

Co.,  i.,  727. 
Breck  v.  Cole,  ii.,  637,  684. 
Breed  v.  Pratt,  ii.,  689. 
Brendel,  Craig  v.,  i.,  189. 
Brent  v.  State,  ii.,  610. 
Brett  v.  Bucknam,  ii.,  1047. 
Brewer'®.  Brewer,  ii.,  850. 
Bretton,  State  «.,  i.,  729. 
Brevoort  v.  Warner,  ii.,  1050. 
Brewer,  Denn  ®.  ii.,  930. 

v.  Hyndman,  ii.,  847. 
State,  v.  ii.,  983. 
Brewster,  Dennis  «.,  i.,  811. 
Brice  v.  Lide,  i.,  478. 
Bridge  0.  Eggleston,  ii.,  902,  984. 
v.  Wellington,  ii.,  9  30. 
72 


Bridges  v.  Hyatt,  ii.,  816,  838. 
Briggs,  Bean,  v.,  i.,  410. 

State  v.,  i.,  188,  279. 

Varick  ?;.,  ii.,  900. 
Bright  v.  Pennywit,  i.,  401. 

0.  White,  i.,  34. 

v.  Young,  i.,  399. 
Brighton,  Exeter  v.,  ii.,  711. 
Brimhall  v.  Yau  Campen,   i.,  410. 
Brinckerhoff,    Thalhimer    v.,    i., 

398. 
Brinegar  v.  Chaffin,  ii.,  931. 
Brinsmaid  v.  Mayo,  ii.,  925. 
Brinyea,  State  v.,  i.,  394. 
Brittain,  Chetwood  «.,  i.,  420. 
Britton,  Commonwealth  v.,  i.,  115. 
v.  Lorentz,  ii.,  987. 
Stone  v.,  ii.,  932. 
Broadnax,  Rogers  v.,  i.,  478. 
Bromberger,  Mitchell  v.,  ii.,  988. 
Brooks,  Jackson  v.,  i.,  414. 
Brooke,  Foster,  v.,  ii.,  842. 
Brooks  Letts  v.,  ii.,  693. 

Speed  «.,  ii.,  846. 

v.  Tarbeli,  i  259. 
Broughton  v.  Blackman,  i.,  411. 
State*.,  ii.,  909,  982. 
Brower  v.   Bowers,    i.,    419,   420. 
422. 
v.  Hughes,  i.,  259. 
Brown,  Baltimore,    &c.  Steamboat 
Co.  v.,  i.,  421. 

Bank  of  South  Carolina  v., 
i.,  398. 

Bogart  v.,  i.,  403. 

0.  Bulkley,  i.,  499. 

v.  Burnham,  ii.,  687. 

v.  Cambridge,  i.,  428. 

v.  Commonwealth,  i.,  115 

Dan  v.,  L,  812. 

Entreken  v.,  ii.,  579. 

v.  Freeland,  ii.,  718. 

Frost  ».,  i.,  499. 

Harriman  «.,  ii.,  851. 

Hewlett  ».,  ii.,  1047, 10-18. 

Hylton  v.,  i.,  403,  ii.,  74. 


ii38 


AMERICAN    CASES     CITED. 


Brown,  Ibbitson  v.,  ii.,  862. 
v.  Jewett,  ii.,  693. 
v.  King,  ii.,  687. 
Lawrence  «.,ii.,  934. 
Leeds  v.,  ii.,  1047. 
v.  Lincoln,  i.,  450. 
New  Haven  Copper  Co.  v 

L,  499. 
p.  Payson,  ii.,  986. 
South  Carolina  Bank  v.,  i., 

819. 
v.   State,    i.,  52,  115,   220, 

392. 
State  v.,  i.,  394,  ii.,  567. 
Travis  v.,  i.,  451. 
v.  Wheeler,  ii.,  932. 
v.  Wright,  i.,  825. 
Browne  v.  Boston,  i.,  398,  ii.,  819. 
Browner,  Jackson  v.,  ii.,  846. 
Browngeld,  James  v.,  i.,  477. 
Brownsville,  Butcher  v.,  i.,  412. 
Brubaker,  Diller  ».,  ii.,  934. 

v.  Okeson,  ii.,  934. 
Bruce  v.  Priest,  i.,  490. 

Wooley  ».,  ii.,  841. 
Brucker  v.  State,  i.,  411. 
Brume,  Canuon  v.,  ii.,  1000. 
Brunelts,  State  v.,  i.,  113. 
Brunson,  State  ».,  i.,  439. 
Bryan,    Haywood,  &c,  Plankroad 

Co.  v.,  i.,  811. 
Bryant,  Dorrah  v.,  ii.,  934. 
Dana  v.,  ii.,  925. 
Lancey  v.,  ii.,  609. 
State  v.,  i.,  259. 
Bryon  v.  Walton,  ii.,  932. 
Bryson,  State  v.,  ii.,  848. 
Buchanan,  Carter  v.,   i.,  478,  ii., 
843. 
«   King,  ii.,  630. 
Kingsbury       v.,      ii., 

927. 
Murray  v.,  i.,  812. 
v.  Whitam,  i.,  481. 
Buck  v.  Ashbrook,  i.,  189. 
Buckbee,  Gardner  ».,  ii.,  1005. 


Buckh alter  v.  Edwards,  ii.,  932. 
Buckingham,  Reichert  «.,  i.,  258. 
Buckinghouse    v.    Gregg,    i.,  409, 

411. 
Buckley  v.  Ketelas,  i.,  33. 
Buckminster  v.  Perry,  i.,  499. 
Bucknam,  Brett  v.  ii.,  1047. 
Bucknor,  Ruggles  v.,  ii.,  622. 
Budlong,    Rochester,    &c.    R.    R. 

Co.  v.,  ii.,  867. 
Buckley,  Brown  ».,  i.,  499. 
Buckley,  Kilgore  «.,  i.,  33. 
Buckner  v.  Morris,  i.,  401. 
Bufferlon  v.  Newson,  ii.,  925. 
Burlington  v.  Book,  i.,  826. 
Bufft  v.  Troy,  &c,  R.  R.  Co.,  ii., 

719. 
Buford  v.  Hickman,  i.,  412. 
Bulkey  v.  Derby  Fishing  Co.,  i., 

400. 
Bullard  v.  Billings,  ii.,  900. 
Bullard,  Brattle  Square  Church  »., 

ii.,  591. 
Bullou  v.  Humphrey,  ii.,  539. 
Bultes  v.  Repp,  i.,  420. 
Bumpus  v.  Fisher,  ii.,  636. 
Bunker,  Mooers  v.,  ii.,  846. 
Bunnell  v.  Greathead,  i.,  279. 
Burdini  v.  Grand  Lodge,  i.,  410. 
Burdit  v.  Burdit,  ii.,  925. 
Burfee,  Vandine  «.,  ii.,  877. 
Burke,  Commonwealth  v.,  i.,  212. 
Burgess  v.  Lloyd,  i.,  499. 
Burgess,     Commonwealth     t>.,    L, 

395,  778. 
Burkmeyer,    Whiteford     v.,     iL, 

893. 
Burlington,    Wilmington     v.,    ii., 

687. 
Burnett  v.  Henderson,  i.,  411. 
Burney  v.  Ball,  ii.,  694. 
Burnbam,  Alexander  v.,  i.,  411. 
Brown  v.,  ii.,  687. 
v.  Hatfield,  ii.,  983. 
Burns,  People  ».,  ii.,  909. 
Burr's  (Aaron)  case,  ii.,  1040. 


AMERICAN    CASES    CITED. 


1139 


Burr  v.  Harper,  i.,  467-468. 

0.  Sun,  ii.,  693. 
Burrill  v.  Hull,  i.,  278. 
Burrows,  Armstrong  v.,  ii.,  879. 
Burt,  Holbrook  v.,  i.,  421. 
Sizer  v.,  i.,  402. 
v.  Sternburgh,  ii.,  1005. 
Burton  v.  Black,  ii.,  932. 

Brashear  v.,  ii.,  900. 
v.  McKinstry,  ii.,  900. 
v.  Scott,  ii.,  568. 
Bury  v.  Pope,  ii.,  649. 
Buswell  v.  Poiner,  i.,  428. 
Butcher  v.  Brownsville,  i.,  412. 
Butler,  Brand  v.,  i.,  57. 

Central  Bridge  v.,  i.,  499. 
Commonwealth       v.,     ii., 
717. 
v.  Commonwealth,  ii.,  915. 
v.  Livingston,  ii.,  608. 
Riley  v.,  i.,  304. 
Stewart  ».,  ii.,  930. 
Suffern  v.,  i.,  420. 
Butsch,  Shank  v.,  i.,  451. 
Butterworth,  May  •».,  i.,  305. 
Byrd   v.    Flemming,    i.,    499,    ii., 
551. 
Shields  v.,  i.,  814. 
Byrne,  Vardeman  v.,  ii.,  536. 
Byron,  Byron  v.,  i.,  288. 

Stones,  v.,  i.,  287,  289,  293, 
294. 
Bryam,  Call  v.,  i.,  189,  304,  ii.,  891. 
Byrne  v.  Morehouse,  ii.,  930. 

Cabarga,  v.  Seeger,  i.,  450. 
Cabiness,  Brandon  v.,  i.,  499. 
Cabot  v.  Wendson,  i.,  428. 
Cain  v.  State,  ii.,  910. 
Caithorp,  Fletcher  v.,  i.,  33. 
Calais,  &c.  Co.    v.    Van  Pelt,    ii., 

608. 
Caldwell  v.  State,  i.,  726. 
Calif!  v.  Hillhouse,  ii.,  933. 
Call  v.    Byram,    i.,  189,    304,    ii., 

891. 


Calmes,  Kyle  v.,  i.,  499. 
Calvin,  Ex  parte,  i.,211. 
Cambridge,  Brown  «.,  i.,  428. 
Cameron,  Leland  v.  i.,  815. 
Campbell,  Cotton  v.,  ii.,  531. 

Governor,    The,   «.,    ii. 
579,  841. 

v.  Johnson,  i.,  419. 

Kelley  v.,  i.,  477. 

v.  Knights,  ii.,  929. 

v.  Miller,  i.,  34. 

v.  People,  i.,  395. 

v.    State,   i.,    115,    116, 
392. 

v.  Wallace,  ii.,  531. 
Campion  v.  Kille,  i.,  410. 
Canal,  McCarteev.,  ii.,  695. 
Canal  Co.  v.  R.  R.  Co.,  i.,  411. 
Carifield,  Clark  v.,  694,  695. 
Cannell  v.  Crawford,  i.,  259. 
Cannon  v.  Brume,  ii.,  1000. 
Cantey  v.  Piatt,  i.,  438. 
Cantling  v.  Hannibal,  &c.    R.    R. 

C«.,  ii.,  877. 
Capron,  Joslyn  0.,  i.,  421. 
Card  v.  Card,  i.,  278,  ii.,  1049. 
Carey  v.  Cincinnati,  &c.  R.  R.  Co., 

L,  410. 
Carzill,  Henderson  v.,  ii.,  842. 
Carlard  v.  Cunningham,  i.,  398,  ii., 

819. 
Carnal,  People  v.,  ii.,  984. 
Carner  v.  Charter  Oak  Ins.  Co.,  i., 

492. 
Carpenter  v.  Blake,  ii.,  869. 

v.  Dame,  i.,  820. 

Hatch  «.,  i.,  812. 

v.  Hollister,  ii.,  900. 

Niets  ».,  ii.,  644. 

Sellers,  v.  i.,  812. 

v.  Stillwell.  ii.,  933. 

v.  Thompson,  ii.,  983. 

v.  White,  L,  278. 
Carr  v.  Great  Western  Ins.  Co.,  iM 
259. 
Hunto.,  i.,  421. 


1 140 


AMERICAN    CASES     CITED. 


Carr  v.  Miner,  ii.,  812. 
State  ».,  ii.,  914. 
v.  Weld,  ii.,  987. 
Carradine  v.  Carradine,  ii.,  928. 
Carrie  v.  dimming,  ii.,  842. 
Carroll  v.  Bowie,  ii.,  621. 

0.  Charter  Oak  Ins.  Co.,  i., 

304. 
v.  State,  ii.,  908. 
Carron  v.  Washington  Toll  Bridge 

Co.,  i.,  410. 
Carson,  McCasland  v.,  ii.,  900. 

v.  Smith,  i.,  410. 
Carters.  Buchanan,  i.,  478,  ii.,  843. 
v.  Chaudron,  i.,  414. 
Jennings  ».,  i.,  33. 
Parker  ».,  ii.,  986. 
v.  People,  i.,  116. 
Carver  v.  Jackson,  ii.,  930. 
v.  Harris,  i.,  499. 
v.  Touthain,  i.,  304,  492. 
Gary,  Commonwealth  v.  i.,  212. 
Shepardson  ».,  ii.,  1000. 
v.  Pitt,  i.,  469. 
Case  v.  Case,  ii.,  603. 

Indianapolis,  &c,  R.  R.  Co., 

v.,  a.,  409. 
Peebles  v.,  ii.,  1029. 
Casey,  Commonwealth  v.,  i.,  116. 
Cash    v.    Clark    Co.    Auditor,    i., 
409. 
v.  State,  L,  411. 
Castro,  Whitlock®.,  i.,  409. 

Wilson  v.,  ii.,  933. 
Catlin  v.  Gilders,  ii.,  536. 
Cator,  R.  v.,  i.,  470. 
Caujolle  v.  Ferrie,  ii.,  626. 
Caul  field  v.  Sanders,  i.,  813. 
Cavin  v.  Smith,  ii.,  900. 
Cayuga  Co.    Bank  v.  WardeD,   i., 

33. 
Caykendall,  Ex  parte,  ii.,  884. 
Center,  Jewell  v.,  i.,  404-410. 
Centee  v.  Pratt,  i.,  411. 
Central  Bank  v.  Allen,  i.,  398. 
Central  Bridge  v.  Butler,  i.,  499. 


Chabbock.  Commonwealth  v.,    ii., 

915. 
Chad  wick,  Robinson  v.,  i.,  189. 
Chaffee  v.  Cox,  L,  404. 
Chaffer  v.   Baptist,    &c,  Society, 

ii.,  1029. 
CharEn,  Brinegar  ».,  ii.,  931. 
Chalfant,  Kerr  v.,  ii.,  930. 
Chambleis,  Cleaton  0.,  ii.,  1006. 
Chambers,  v.  People,  i.,  411. 

Reaume  v.,  i.,  414. 
Champ  v.  Commoiiwealth,  i.,  392. 
Chance  v.  Indianapolis,  «fec,  Road 

Co.,i.,   304. 
Chandler,  Bell  v.,  i.,  404. 

v.  Le  Barron,  i.,  451. 
Williams  v.,  ii.,  923,  924. 
Chapin,  Eagle  Bank  v.,  i.,  398. 
v.  Marlborough,  i.,  478. 
Morrison  v.,  i.,  813. 
v.  Taft,  ii.,  838. 
Chapman  v.  Chapman,  ii.,  846. 
Fitch  v.,  ii.,  851. 
Folsom  v.,  i..  258. 
v.  Harrold,  i.,  411. 
La  Grange  v.,  i.,  409. 
v.  Republic  Life  Ins.  Co., 

i.,  728. 
Thomas  v.,  ii.,  985, 
Charles,  Bemis  v.,  i.,  403. 

United  States  v.,  ii.,  907, 
984. 
Charlestown,  Shaw  v.,  ii.,  877. 
Charlton,  Bacons.,  i.,  479. 
Charter  Oak  Ins.  Co.,   Carner  v., 

i„  492. 
Carroll  v., 
L,  304. 
Chase,  Bray  ton  v.,  ii.,  988. 
Crosby  v.,  ii.,  931. 
Lawton  v.,  i.,  304,  ii.,  877. 
Mowry  ».,  ii.,  875. 
v.  People,  i.,  392. 
v.  Savage,  i.,  827. 
Chastain  v.  Robinson,  ii.,  862. 
Chaudron,  Carter  v.,  i.,  414. 


AMERICAN    CASES     CITED. 


1 141 


Cheatham  v.  Riddle,  ii.,  811. 
Cheemasero  v.  Gilbert,  i.,  410. 
Cheeseborough,     "Williams    v.,  ii., 

825. 
Chelsea,  Green  v.,  i.,  414. 
Cherry  v.  Baker,  i.,  411. 
Chesapeake,  &c.    Co.    v.    Gittings, 

ii.,  1000. 
Chester,  Rochester  v.,  ii.,  877. 
Chetwood  v.  Brittain,  i.,  420. 
Chew  v.  Farmers1  Bank,  ii.,  986. 
Cheswell  v.  Eastham,  i.,  479. 
Chicago,  Goodrich  v.,  ii.,  1006. 
Maher  ».,  L,  478. 
&c.  R.  R.  Co.,  Woodward 
v.,  i.,  409. 
Chickering  v.  Failles,  i.,  499. 

Richardson  v.,  ii.,  932. 
Chiles  v.  Conley,  ii.,  643. 
Chillicothe,  &c.  Co.  v.  Jameson,  ii., 

987. 
Chirac  v.  Reinicker,  ii.,  986. 
Chism,  Hooper  «.,  i.,  401. 
Choate,  Commonwealth  v.,  i.,  873. 
Chonteau  v.  Pierre,  i.,  410. 
White  v.,  ii.,  851. 
Christie,  McDonald  v.,  ii.,  876. 
Christman,  Jackson  v.,  ii.,  1029. 
Christopher     v.     Corrington,     ii., 

900. 
Chrystal,  Graham  v.,  i.,  492. 
Chubb,  Baylys  v.,  i.,  412. 
Chuboon  v.  State,  ii.,  987. 
Chudd,  Folkesfl.,  ii.,  873. 
Church  v.  Drummond,  i.,  490. 
v.  Fagan,  ii.,  718. 
Thompson  v.,  i.,  490. 
Claiborne  v.  Parish,  ii.,  838. 
Clancy,  Atwater  v.,  ii.,  868. 
Clark,  Adams  v.,  ii.,  637. 

Armstrong  v.,  ii.,  1047. 
Bain  v.,  ii.,  862. 
Ballew  ».,  ii.  689. 
v.  Bigelow,  ii.,  879. 
v.  Canfleld,  ii.,  694,  695. 
F'eming  v.,  i.,  826. 


Clark,  Forsaith  v.,  ii.,  632,  693. 

v.  Freeman,  i.,  450. 

Isaacs  v.,  ii.,  926. 

Knowlton  v.,  i.,  479. 

v.  Lancaster,  i.,  420. 

Luckett  v.,  i.,  400,  ii.,  820. 

Martin  v.,  i.,  419,  420. 

McLean  v.,  ii.,  987. 
.     Meldrum  ».,  ii.,  637,  684. 

«.  New  York  Life  Ins.  Co. 
i.,  161,  419. 

v.  Owens,  i.,  33,  414. 

Pelamourges  v. ,  ii.,  876. 

People  v.,  i.    394. 

v.  Pratt,  i.,  412. 

v.  Richards,  ii.,  988. 

v.  Rhodes,  i.,  450. 

v.  Rush,  L,  499. 

Sheldon  ».,  i.,  393. 

v.  Smith,  ii.,  1046. 

v.  State,  i.,  242,  392,  394 

State  v.,  ii.,  874. 

Webster  ».,  i.,  399. 

v.  Wood,  i.,  414. 

v.  Wyatt,  i.,  451. 

v.  Young,  ii.,  1006. 

Co.     Auditor,    Cash   c,     . , 
409. 
Clary  v.  Clary,  ii.,  869. 
Clay,  Banta  v..  ii.,  841. 
Clayton,  Bailey  v.,  ii.,  718. 
v.  Siebert,  i.,  450. 
v.  Tucker,  i.,  477. 
Williams,  v.,  ii.,  900. 
Clear  Lake,  &c.  Co..  Grigsley,  «., 

ii.,  867. 
Cleaton  v.  Chambleis,  ii.,  1006. 
Cleaves,  State  v.,  i.,  82,  258,  260. 
Cleavinger  v.  Reiar,  ii.    639. 
Cleft  v.  White,  L,  33. 
Clem  v.  State,  i.,  394. 
Clements  v.  Kyles,  ii.,  844. 
Clemins  v.  Logging,  ii.,  900. 
Claremont   v.    Tullidge,     i.,    465^ 

468. 
Cliff  ton,  Abignye  v.,  i.,  284,  285. 


1 142 


AMERICAN    CASES     CITED. 


Cliffton  p.  Lilley,  i.,  815. 

v.  United  States,  i.,  398. 
Clirigan,  People  v.,  i.,  399. 
Clore,  Ross  v.,  ii.,  693. 
Cloud,  S.  P.  v.  Patterson,  ii.,  531. 
Cluck  v.  State,  i.,   895. 
Cluggage  v.  Swan,  ii.,  984. 
Coulter,  Matthews  v.,  i.,  477. 
Cobbet  v.  Hudson,  i.,  292. 
Coble  v.  McDaniel,  ii.,  851. 
Coburn  v.  Odell,  ii.,  718. 
Cochran  v.  Street,  ii.,  984. 
Cocke  v.  Bailey,  i.,  419. 

Newton  v.,  i.,  410. 
Cofer  v.  Thurmond,  ii.,  693. 
Coffee,  Flynn  v.,  ii.,  693. 
v.  State,  i.,  394. 
State  ».,  i.,  393. 
Coffeen  v.  Hammond,  i.,  402. 
Coffman,  Blair®.,  i.,  477. 
Cogswell  v.  Meech,  ii.,  1046. 
Cohen,  Abeles  v.,  i.,  52. 
Cohn,  Bach  v.,  ii.,  533. 

v.  Mulford,  ii.,  900. 
Coit  v.  Williken,  i.,  34. 
Cold  well,  Bragg  v.,  i.,  450. 
Cole,  Breck  v.,  ii.,  637,  684. 
Lane  v.  ii.,  1046. 
Southern   Ins.  &  Life  Co.  p., 

i.,  499. 
United  States  v.,  ii.,  539. 
v.  Whitney,  ii.,  893. 
Coleman,  Barker  ».,  ii.,  851. 
v.  Dobbins,  i.,  412. 
v.  Frazier,  ii.,  851. 
State  v.,  ii.,  539. 
Collier  v.  Baptist  Soc,  i.,  412. 
Riggin  v.,  i.,  409. 
n.  State,  ii.,  596. 
Collins,  Holman  v.,  i.,  410. 
Hunt  v.,  i.,  404. 
Packard  ».,  ii.,  1047. 
State  v.,  i.,  391-392 
Wilkie  v.,  i.,  422. 
Colock,  Reid  v.,  i.,  404. 
Colt,  Boyd  v.,  ii.,  1047. 


Colton,  Hinderoper  z.,  ii.,  982. 
Columbia,  People  v.,  ii.,  984. 
Columbia    Bank,    Renner    v.,    i., 

401. 
Columbian  Ins.  Co.,  Black,  v.,  L, 

420. 
Marshall     v., 
ii.,  873. 
Colvin  v.  Warford,  ii.,  579. 
Coman  v.  State,  i.,  402,  ii.,  820. 
Comins  v.  Comins,  i.,  478. 
Comman,  Arnold  ».,  ii.,  932. 
Commissioners,  Atchinson,  &c,  R. 
R.  Co.  v.,  ii.  999. 
v.  Hanion,  i.,  450. 
Board  of,  &c,  v. 
Spitler,  i.,409. 
Common  Council,  Johnson,  v.,  i., 

409. 
Commonwealth    v.    Andrews,    i., 
391. 
v.     Bolkom,     ii., 

635. 
Boswell     v.,      i., 

394. 
v.      Britton,      i., 

115. 
v.  Bowen,  i.,  737. 
v.  Boyer,  i.,  393. 
Brown  v.,  i.,  115. 
v.     Burgess,     i., 

395,  ii.,  778. 
v.  Burke,  i.,  212 
v.  Butler,  ii.,  717. 
Butler  v.,  ii.,  915. 
v.  Cary,  i.,  212. 
v.  Casey,  i.,  116. 
v.  Chabbock,  ii. 

915. 
Champ  v.,  i.,  392. 
p.  Choate,  ii.,  873. 
v.  Cooper,  i.,  114, 

116. 
Cornelius    v.,    i. 

395. 
«.  Crans,  ii.,  983. 


AMERICAN    CASES    CITED. 


ii43 


Common-wealth    u.  Daley,  i.,  499. 
v.  Dana,  i.,  393. 
v.    Densmore,    i., 

114,  115. 
v.  Drake,  ii.,  994. 
v.   Drew,  i.,   393, 

394,  ii.,  984. 
v.  Drum,  L,  391, 

393. 
v.     Eastman,    ii., 
876. 
v.  Eddy,   i.,  392, 

394. 
v.  Emery,  i.,  398, 

ii.,  819. 
Fife  v.,    i.,    393, 

ii.,  913. 
Finn  v.,  ii.,  914. 
Gaines  v.,  i.    392. 
v.    Geisenberger, 

i.,  392. 
v.    Goodwin,     i., 

391,  3»2. 
Grayham    «.,    i., 

727. 
«.     Hackett,     i., 

115. 
v.     Hardiam,     i., 

393. 
v.  Harlow, ii.,  917. 
v.     Harman,     i., 

312,     391,     ii., 
909,  911. 

Haskill  v.,  i.,  512. 

Hopkins  «.,i.,  395. 

v.    Hawkins,     i., 

392,  393. 
Hawser  v.,  i.,  392. 
v.  Heath,  i.,   393, 

395. 
».  Hersey,  i.,  392 
v.  Hill,  i.,  393,  ii. 

981,  982,  984. 
».  Honer,  ii.,  612. 
v.  Howe,  ii.,  912, 
913. 


Commonwealth,    Hudson,     ».,    ii^ 

910. 
v.  James,  i.,  243. 
Jane,  v.,  i.,    391, 

ii.,  909. 
Kilpatrick  v.,    i., 

114,  115,    394, 
411. 

v.    Kimball,    393, 

512. 
v.  Knapp,  i.,  393, 

ii.,  712,  909. 
Kriel  «.,  i.,   392, 

394,  ii.,  727. 
u.    Lenox,  i.,  116, 

392. 
Lynch  v.,  i.,  392. 
March  v.,  i.,  411. 
v.  Marrow,  i.,304. 
Martin  v.  ii.,  717. 
v.  McGowan,  ii., 

908 
v.  McKie   i.,  391. 
v.      McPike,      i., 

115,  394,  479. 
v.  Mead,  ii.,  984, 

985. 
Moody,  v.,  i.,813. 
p.  Moran,  i.,  420. 
Morrow     v.,      i., 

398. 
v.  Mosler,  ii.,  908. 
v.      Moulton,     i., 

478. 
v.  Murphy,  i.,220. 
v.  Murray,  i.,  116. 
v.    Neal,  ii.,  717, 

718. 
v.  Oberle,  ii.  862. 
0'Mara,».,  i.,  393, 

394. 
».  Ortwein,  i.,  392 
v.  Parker,   i.,  398 
v.    Patterson,      i. 

188. 
t>.  Moltz,  ii.,  933 


H44 


AMERICAN    CASES    CITED. 


Commonwealth  v.     Pollard,      ii., 

1028. 
v.  Pope,   i.,     391, 

392. 
v.     Randall,      i., 

732. 
Read,  v.,  ii.,  984, 
v.     Rodgers,     i., 

392. 
v.  Sacket,  i.,  490. 
Butterford  v.,  ii., 

907. 
v.  Smith,  i.,  395, 

ii.,  778,  982. 
Smith  v.,  i.,   391, 

392,  394. 

9.  Snell,  i.,  813. 
Straup  «.,  i.,  393. 
v.  Stow,  i.,  393. 
t>.  Taylor,  ii.,  907. 
v.  Tilden,  ii.,  982. 
Tharp  ».,  ii.,  635. 
Thomas    v.,    ii., 

982. 
v.    Thurlow,      i., 

393,  509. 

v.    Trimmer,     ii., 

717. 
c.  Tuckerman,  ii., 

912. 
\  v.    Twitchell,    i., 

392. 
Vass  v.,  i.,  116. 
Vaughan    v.,    ii., 

730,  911. 
v.     Webster,     i., 
333,  391,  ii.,  547, 

874. 
t.  Whittmore,  ii., 

912. 
9.     Williams,     i., 
114,  ii.,  875. 
Williams  v.,    ii. 

909. 
t.  Winnemore,  i., 

212. 


Commonwealth  v.  York,  i.,    393. 
394. 
Tounge,     v.,    i., 

114. 
Bank  v.  Mudgett, 
i.,  304. 
Comparet  v.  Jernegan,  i.,  33. 
Conant,  Dana  ».    i.,  403. 
Conaway,  Jefferson  ».,  i.,  398. 
Concord  R.  R.  v.  Greeley,  ii.,  873. 
Perkins  ».,  ii.,  861. 
Coneston    v.    Connecticut  Mutual 

Ins.  Co.,  i.,  728. 
Congers,  Hamilton  ».,  i.,  421,  596. 
Conjolle  v.  Ferrie,  ii.,  845,  846. 
Couley,  Chiles  ».,  ii.,  643. 

v.  State,  ii.,  911. 
Conn.,  Tudale  v.,  ii.,  693. 
Connecticut,  Mutual  Ins.  Co.  vM  i., 

728. 
Connell,  Elliott  v.,  I,  420. 
Conner  v.  State,  i.,  393. 
Connor,  Belcher,  v.  i.,  304. 

Stewart  v.,  i.,  450,  ii.,  815. 
Winship  v.,  ii.,  693. 
Connover,  McAfferty,  v.  ii.,  934. 
Conway,  Sprading  ».,  i.,  159. 

v.  State  Bank,  ii.,  532. 
Cook,  Ex  parte,  i.,  198. 

v.  Bidwell,  ii,  1047. 
Buffington  v.,  i.,  826. 
v.  Cook,  i.,  189. 
Dixon  v.,  i.,  161,  419. 
v.  Hunt,  i.,  812. 
v.  Nethercote,  i.,  295. 
Rigg  v.,  i.,  477. 
State  v.,  i.,  914. 
v.  Wilson,  i.,  410. 
Cooke  v.  Crawford,  i.,  410. 
v.  Woodrow,  L,  814. 
Cooley,  Jackson  v.,  ii.,  846. 
Cooper  v.  Bean,  ii.,  567.  568. 
Bradford  ».,  i.,  410. 
Commonwealth  ©.,  i.,  114, 

395. 
v.  Galbraith,  ii.,  624. 


AMERICAN    CASES     CITED. 


1 145 


Cooper  0.  Granberry,  i.,  399. 

0.  Mass.  Mut.  Life  Ins.  Co., 

i.,  727. 
0.  Reynolds,  ii.,  1004. 
State©.,  i.,  729. 
Coote,  Patriotic  Bank  v.,  ii.,  532. 
Copeley,  Schuylkill  0.,  i.,  220. 
Copes  0.  Pearce,  ii.,  846. 
Corcoran,  United  States  Bank  v., 

ii.,  536. 
Cordes,    Steamer  Niagara  0.,    ii., 

719. 
Corn,  Teerpenning  v.,  i.,  304. 
Cornwell  0.  Wooley,  ii.,  1029. 
Corrington,  Christopher  0.  ii.,  900. 
Costello,  Hall  0.,  i.,  304. 
Cotton  v.  Campbell,  ii.,  531. 
Copeland  0.  Copeland,  ii.,  933. 
Corinth  0.  Lincoln,  i.,  477. 
Corkhill  0.  Landers,  ii.,  932. 
Cornelius    0.    Commonwealth,    i., 
395. 
0.  State,  i.,  477. 
Cornell  0.  Barnes,  i.,  259. 

United    States  0.,  L,  393, 
394. 
Coryell,  Urket  v.,  i.,  414. 
Costigan  v.  Mohawk,  i.,  499. 
Coulter,  Prior  0.,  ii.,  718. 
Coupenhaver,  State  v.,  ii.,  984. 
Coursey,  Hughes  v.  i.,  52. 
Courtland  v.  Patterson,  ii.,  893. 
Courtney    0.   Baker,    i.,    476,   ii., 

1046. 
Courvoisier,  Ex  parte,  ii.,  546. 
Coveney  0.  Tannahill,  ii.,  987. 
Covert  0.  Gray,  ii.,  688. 
Cowan,  State  0.,  ii.,  916. 
Cowell,  Blaisdell  v.,  ii.,  624. 

0.  Hill,  L,  33. 
Cowgill,  Tingley  v.,  ii.,  890,  891. 
Cowler,  Townsend  0.,  i.,  420. 
Cowles  ,0.  Bacon,  ii.,  932. 

Illinois,  &c,  R.  R.  Co.  0., 

ii.,  719. 
Keech  a.,  i.,  258. 


Cowles  Lake  Merced  "Water  Co.  0., 

i.,  412. 
Cox,  Fitzgerald  v.  i.,  258. 
Coxe,  Scott  v.,  ii.,  688. 
Coye  0.  Leach,  ii.,  534. 
Craft,  Payne  0.,  ii.,  900. 
Craig  v.  Brendel,  i.,  189. 
Hawkins  v.,  i.,  402. 
United  States  v.,  i.,  438. 
Cram,  Hicks  v.,  ii.,  934. 
Cramer  v.  Shriner,  i.,  478. 
Crandall,  De  Coolff  v.,  i.,  420. 
Crane,  Kinley  ».,  ii.,  844. 
v.  Marshall,  i.,  414. 
Crans,   Commonwealth  v.,  ii.,  983 
Cranston,  Griffin  v.,  i.,  33. 
Crane  v.  Morris,  ii.,   536,  930. 
Crawford  v.  Andrews,  ii.,  873. 

0.  Beal,  ii.,  893. 

Blackburn  ».,  ii.,  988. 

Cannell  v..  i.,  259. 

Cooke  v.,  i..  410. 

v.  Elliott,  ii.,  693. 

Hildebrant  v.,  i.,  259. 

v.  McKissack,  ii.,  986. 

Morse  v.,  ii.,  874. 

v.  State,  ii.,  984,  986. 

State  v.,  i.,  392. 

v.  Wilson,  ii.,  711. 

v.  Wolf,  ii.,  869. 
Cray,  Deery  v.,  ii.,  923. 
Creditors,  McRae  v.,  ii.,  930. 
Cremer's  estate,  ii.,  621. 
Cresson,  State  0.,  i.,  490. 
Crilley  0.  State,  i.,  393. 
Cristy  0.  Home,  i.  398. 
Crocker  0.  State,  ii.,  983. 
Crommelin,  Minter  v.,  ii.,  622. 
Cronby  v.  Murphy,  i.,  305. 
Cronsillat,  De  Taslett,  v.,  ii.,  532. 
Crooks,  Garrett  v.,  i.,  421. 
Croom,  Smith  0.,  ii.,  534,  699. 
Crosby  v.  Chase,  ii.,  931. 
Cross  v.  Bell,  L,  403. 
Cross,  Dufield  v.,  ii.,  847. 
Law  v.,  i.,  478. 


1146 


AMERICAN    CASES    CITED. 


Cross  v.  Lewis,  ii.,  649. 

Mitch inson  v.,  i.,  258. 
v.  Riggins,  ii.,  987. 
Crossgrove     v.     Hiramelrich,    ii., 

847. 
Crow  v.  Harrod,  ii.,  841. 
Hudson  v.,  i.,  478. 
Crowinshield  v.  Crowinshield,  ii., 

568. 
Crowningshield,     Taylor     v.,     i., 

451. 
Crowell,  State  v.,  i.,  393,  512. 
Crowther  v.  Gibson,  i.,  477. 
Cruger  v.  Daniel,  ii.,  851. 
Cuba,  The  Isle  of,  United   States 

».,  ii.,  539. 
Culver,  Whitacre  v..  ii.,  932. 
Culy,  Muira.,  ii.,  1047. 
Cumming,  Carrie  ©.,  ii.,  842. 
Cody  a.  Hough,  i.,  401. 
Cummings  v.  McKinney,  i.,  401. 
v.  Stone,  ii.,  718. 
v.  "Webster,  ii.,  932. 
Cundell  v.  Pratt,  i.,  199. 
Cuneton,  Tcagan  v.,  i.,  479. 
Cunningham,  Carlard  ©.,  i.,     398, 
ii.,  813. 
v.  Parks,  i.,  478. 
Curran,  State  Bank  v.,  i.,  411. 
Currier  v.  Boston,  i.,  478. 
Curry,  Davis  0.,  i.,  410. 
Curtis  v.  Moore,  i.,  477. 
Pagett  v.,  i.,  411. 
Cushing®.  Willard,  i.,  478. 
Cushman,  Grob  v.,  i.,  412. 
Cuts  v.  Pickering,  i.,  291. 
Cuyler    v.    McCartney,    ii.,    1047, 
1048. 

Da  Costa  v.  Paz,  ii..  627. 
Daggett  v.  Welley,  ii.,  844. 
Dale  v.  Gold,  i.,  33. 

v.  Gower,  i.,  479. 
Daley,  Commonwealth  «.,  i.,  499. 
Dall,  Simpson  v.,  ii.,  813. 
Dallas,  Smith  v.,  i.,  420. 


Dalton,  State  v.,\.,  490. 
Dame,  Carpenters.,  i.,  820. 
Dan  v.  Brown,  ii.,  812. 
Dana  v.  Boyd,  i.,  400,  ii.,  819. 
v.  Bryant,  ii.,  925. 
Commonwealth  v.,  i.,  393. 
v.  Conant,  i.,  403. 
v.  Tucker,  ii.,  984. 
Dandridge,  Steam  Navigation  Co 

«.,  i.,  478. 
Danforth  v.  8treeter,  i.,  478. 
Daniel,  Cruger  v.,  ii.,  851. 

v.  Daniel,  ii.,  927. 
Daniels,  Durham  v.,  i.,  411. 
*.  Foster,  i.,  259. 
v.  Mosher,  ii.,  874. 
Warner    v.,  i  ,.    499,    ii., 
551. 
Dann  v.  Kingdom,  i.,  278. 
Danville  v.  Putney,  ii.,  710. 

&c,  Co.  v.  State,  i.,  410, 
411. 
D'Aquin  v.  Barbour,  i.,  478. 
Darby,  Bennoist  v.,  ii.,  841. 
Duvall  v.,  i.,  478. 
v.  Garrick,  i,,  402. 
Dare,  Rogers  v.,  ii.,  986. 
Dauphin    v.    United     States,    ii., 

875. 
Dautrive,  Euperrier  v.,  i.,  478. 
Davenport,  Drish  v.,  i.,  402. 
v.  Harris,  i.,  812. 
v.  Hubbard,  ii.,  559. 
v.  Mason,  ii.,  551. 
Daverne,  Johnson  v.,  ii.,  988. 
David,  Thomas  v.,  i.,  295. 
Davidson,  Jacquin  v.,  i.,  258. 

McMahon   v.,    ii.,     622, 

718. 
State  v.,  391,  479. 
v.  Young,  ii.,  933. 
Davis,  Archibald  v.,  i.,  414. 

Antaugo  County,  ©.,  i.,  479- 
v.  Curry,  i.,  410. 
v.  Davis,  ii.,   643. 
v.  Durham,  ii.,  1050. 


AMERICAN    CASES    CITED. 


1 147 


Davis  Edwards  v.,  i.,  409. 

Erskine  v.,  ii,  637. 

Flanders  v.,  ii.,  41. 

Heistera.,  ii.,  986,  988. 

Jackson  v.,  i.,  414. 

c.  Jenney,  ii.,  637. 

v.  Loftin,  ii.,  639,  684. 

Looker  v.,  i.,  259. 

Macon,  &c,  R.   R.   Co.  v., 
ii.,  851. 

m.  Mason,  ii.,  844,  880. 

Metnnio  v.,  i.,  412. 

Newson  v.,  i.,  404,  ii.,  644. 

v.  Ornie,  ii.,  842. 

Outlan  v.,  ii.,  635. 

v.  Petit,  i.,  400. 

v.  Plymouth,  i.,  189. 

Rice  v.,  i.,  399. 

v.  Robertson,  ii.,  531. 

Salmons  v.,  i.,  478. 

v.  Spooner,  ii.,  811,  902. 

v.  State,  i.,  52,  392,  393,  ii., 
890,  891. 

v.  Stern,  i.,  421. 

v.  Thomas,  ii.,  925. 

Williams  v.,  i.,  259. 
Davidson,  Walden  v.,  L,  403. 
Dawson,  Merrill  v.,  ii.,  900. 
Day,  Allis  v.,  ii.,  878. 
Arberter  v.,  i.,  419. 
Arbuter  «.,  i.,  161. 
Forsyth  v.,  ii.,  932. 
v.  Moore,  ii.,  988. 
Deacon  v.  Shreve,  ii.,  985,  986. 
Dean  0.  American  Mut.  Ins.  Co., 
ii.,  727. 

Billingsley  v.,  i.,  410. 

Strong  ».,  i.,  259. 

v.  Berder,  i.,  398,  819. 
Deane  v.  Packwood,  i.,  293. 
Dear,  Wilson  v.,  i.,  421. 
Dearing,  Beall  v.,  i.,  414,  ii.,  815. 
Dearth,  Spencer  v.,  ii.,  1000. 
Decker  v.  Mathews,  i.,  33,  ii.,  703. 
Decklotts,  State  v.,  i.,  393.  394. 
De  Comeau,  Satterlee  v.,  ii.,  1048. 


De  Coolff  v.  Crandall,  i.,  420. 

Deeds,  Guffey  v.,  i.,  438. 

Deery  v.  Cary,  ii.,  923. 

De  Figainere,  Woods  «.,  ii.,  1047, 

1048. 
De  La  Guerra,  People  v.,  i.,  412. 
De  Laistre,  De  Lobry  v.,  i.,  412. 
Delamater  v.  People,  i.,  221. 
Delano  v.  Goodwin,  i.,  419. 
Delaney,  Duffield  «.,  ii.,  536. 

v.  Towns,  i.,  428. 
Delaroderie,  Gayose  ».,  i.,  421,  ii., 

624. 
Delassus  v.  United  States,  ii.,  622, 
De  La  Verge,  Means  v.,  i.,  420. 
Delaware  &c.  Tow  Boat  Co.  v.  State, 

i.,  304,  ii.,  876. 
DeLeon,  Hardy  ».,  ii.,  848. 
Dellirjger's  Appeal,  i.,  189. 
DeMontegro,  Franclierw.,  i.,  411. 
Den  v.  M'Allister,  i.,  403. 
Denn  v.  Brewer,  ii.,  930. 
Dennis  v.  Barber,  i.,  398,  399. 
v.  Brewster,  ii.,  811. 
v.  Niantic  Bank,  ii.,  932 
Dennison  v.  M'Keen,  ii.,  621. 
Densmore,  Commonwealth   v..    L, 

114,,  115. 
Denton  v.  State,  i,  115,  479. 
Depue  v.  Place,  i.,  449. 
DeKay,  Eckford  v.,  ii.,  900. 
Derby  Fishing  Co.,  Bulkey  v.,    L, 
400. 
v.  Gallup,  ii.,  876,  900. 
Derxy  Bank,  Heath  v.,  ii.,  932. 
Desha,  Scales  ».,  ii.,  838. 
DeSobry  v.  De  Laistre,  i.,  412. 
Detroit,  &c.  R.  R.  Co.,  Stroher  v 

ii.,  719. 
DesArts,  Moore  ».,  ii.,  609. 
DesMoines,  &c.  R.  R.  Co.,  Hamil 

ton  v.,  ii.,  867. 
Desnoyer  v.  McDonold,  ii.,  814. 
Devel,  Herschfeld  v.,  I,  412. 
Devling  v.  Little,  i.,  478. 
Dewdney  v.  Palmer,  L,  139. 


1 148 


AMERICAN    CASES    CITED. 


DeWitt  0.  Perkins,  it.,  987. 

Macy  v.,  L,  477. 
Dexter  v.  Hall,  i.,  304. 
DeTaslett  0.  Cronsillat,  ii.,  532. 
De  Volunbrun,  Baptiste  0.,i.,  410. 
Dexter  0.  Hall,  ii.,  891. 
0.  Spear,  i.,  394. 
Dick  0.  State,  ii.,  908. 
DickersoD,  Jackson  0. ,  ii.,  984. 
Dickenson  0.  Talbot,  ii.,  812. 
Dickinson  0.  Lewis,  ii.,  719. 
Die,  State  v.,  i.,  359. 
Dillard  0.  Scruggs,  i.,  479. 
Dille,  Lewire  0.,  i.,  398,  ii.,  819. 
Diller  0.  Brubaker,  ii.,  934. 
Dillingham  0.  Snow,  ii.,  844. 
Dineen,  State  v.,  i.,  391. 
Dinkins  v.  Samuel,  ii.,  626. 
Dinsman,  Wilkes  v.,  ii.,  622. 
Disbrow  v.  Farron,  i.,  438. 
Dishager  0.  Maitland,  i.,  414. 
Distillery  One,   United    States  v., 

i.,  267. 
Divers  0.  Foul  ton,  i.,  403. 
Dixon  0.  Cook,  i.,  161,  419. 
0.  Nichols,  i.,  408. 
0.  State,  i.,  115,    116,   394, 
395. 
Dobbins,  Coleman  v.,  i.,  412. 
I>obbs  0.  Justices,  i.,  478. 
Dobson  0.  Finley,  i.,  414. 
Dodd  0.  Norris,  i.,  199. 
Dodge  0.  Hopkins,  ii.,  637,  684. 

0.  State,  ii.,  1028. 
Doe  0.  Enslava,  i.,  410,  414. 

Henthorn  ».,  i.,  34. 

Jones  0.,ii.,  862. 

v.  McCaleb,  ii.,  812. 

Patterson  «.,  ii.,  531. 

v.  Roe,  i.,  414. 

Rawley  0.,  i.,  399. 
Doherty,  State  v..  ii.,  907. 
Dole  0.  Fellows   ii.,  1050. 

0.  Johnson,  ii.,  877,  878. 
Doaelly0.  State,  i.,  115,  116,  391. 
Donkle  v.  Kohn,  i.,  212. 


Donley  v.  Findall,  i..  420. 
Donnell  0.  Humphreys,  i.,  420. 
Donnellan,  Ex  parte,  i.,  373,  388. 
Donner  v.  Palmer,  ii.,  984. 
Donohue,  Strange  0.,  i.,  477. 
Doolittle,  King  0.,  ii.,  609. 
Doon,  State  v.,  ii.,  982,  984. 
Dorrah  0.  Bryant,  ii.,  934. 
Douglas  v.  Scott,  ii.,  930. 
Douglass,  United    States  v.,    ii., 

539. 
Dougherty,  Reeves  v.,  ii.,  624. 
Dove  0.  State,  i.,  392,  393,  394. 
Dow  v.  SaDborn,  ii.,  1004. 
Dowell  0.  Goldsmith,  ii.,   902. 
Downs,  Barrows  ».,  i.,  304. 
Downes  0.  Maryland,    &c,  R.  R 

Co.,  i.,  258. 
Doyle   v.    St.   James'   Church,   ii., 

848. 
Dozier  0.  Joyce,  1..  411. 
Drake,  Commonwealth  0.,  ii.,  994. 
0.  Flewellen,  i.,  410. 
v.  Glover,  i.,  410. 
0.  Ramsey,  ii.,  815. 
Dreisbach  0.  Birger,  ii.,  812. 
Dresser,  Higbeev.,  ii.,  987. 
Drew,    Commonwealth  0.,  i.,   393, 

394,  ii.,  984. 
Drexel,  Williams  0.,  i.,  451. 
Drish  v.  Davenport,  i.,  402. 
Drum,    Commonwealth  0.,  i.,  319, 

393. 
Diumn,  Martin  0.,  ii.,  624. 
Drummond,  Akin  v.,  i.,  421. 
Drummond,  Church  0.,  i.,  490. 
0.  Leslie,  ii.,  985. 
Drumright  0.  State,  i.,  478. 
Dubois  v.  Baker,  i.,  450,  451. 
Dudley  v.  Beck,  ii.,  9S7. 
Duel,  Sprague  v.,  ii.,  689. 
Duffy  0.  People,  ii.,  916. 

United  States  v.  ii.,  907. 
Dufield  v.  Cross,  ii.,  847. 
DufBeld  0.  Delaney,  ii.,  536. 
1  Dugas  0.  -fcisteletto,  ii.,  551 


AMERICAN     CASES     CITED. 


1 149 


Dukey  v.  Ashby,  i.,  398,  ii.,  819. 
Dulany,  Threve  v.,  i.,  401. 
Duler,  State®.,  ii..  893. 
Dumfries,     William      Richardson, 

case  of,  ii.,  540. 
Dun  v.  Amos,  ii.,  987. 
Duncan  ®.  Beard,  i.,  414. 
State  ».,  i.,  242. 
Dunham,  Allen  v.,  i.,  34. 
Dunham's  Appeal,  ii.,  869,  879. 
Dunlop  v.  Monroe,  ii.,  622. 
Dunn  ®.  Keegin,  ii.,  927. 

®.  Packwood,  i.,  289. 
v.  State,  i.,  114,  395. 
Wetherbee,  v.,  411. 
Dunning,  McTavish  v.,  ii.,  988 
Durham  ®.  Daniels,  i.,  411. 
Davis,  v.,  ii.,  1050. 
®.  Gill,  i.,  420. 
Durkee  v.  Leland,  i.,  402. 
Dusenbury,  Keeler  v.,  ii.,  1046. 
Dutton,  State  v.,  ii.,  S61. 
Duvall  v.  Darby,  i.,  478. 
®.  Med  art,  i.,  477. 
v.  Peach,  ii.,  827. 
Dwight,  Bradbury  v.,  i.,  402. 
Dwinall®.  Larrabee,  i.,400,  ii.,819. 
Dyckman,  People  v.,  ii.,  1947. 
Dyer®.  Flint,  i.,  411. 
v.  Goran,  ii.,  1001. 
Streeps  v.,  ii.,  1003. 
Dykers  ®.  Towushend,  ii.,  718. 
Dyett,  North  American  Coal   Co. 

v.,  ii.,  928. 
Dyer,  Tyler  «.,  ii.,  844. 

Eades  ®.  Maxwell,  ii.,  593. 
Eagle  n.  Emmet,  ii.,  693,  695. 
Eagle  Bank  ®.  Chapin,  i.,  398. 
Eagleton  ®.  Kinston,  i.,  472. 
Eames  v.  Eames,  ii.,  687. 
Earick,  Stromburg  ®.,  i.,  827. 
Earle,    Bank   of     Augusta  ®.,   ii., 
709. 

v    Earle,  i.,  478. 

v.  Tupper,  i.,  476. 


Eamhart,  McCauley  v.,  i.,  400,  ii., 

820. 
Eastbrook  v.   Union,  &c.   Co.,   i., 

727. 
Eastern  R.  R.  Co.,  St.  John  v.,  ii., 

719. 
Webber  v.,  ii., 
879. 
Eastham,  Cheswell  ©.,  i.,  479. 
Eastman  v.  Amoskeag,  &c.  Co.,  i., 
403. 
Commonwealth     v.,     ii , 
870. 
Easton,  Randolph  ».,  ii.  687. 
Eastwood,  People  v.,  i.,  878. 
Eaton  v.  Alger,  i.,  421,  428. 

Prontz  ».,  ii.,  987. 
East   River,  &c,  Bank,  Romerlza 

v.,  i.,  304. 
Eckford  v.  DeRay,  ii.,  900. 
Eddy,  Com.  v.,  i.,  392,  394. 
Edelen  v.  Gough,  ii.,  878. 
Edgar  v.  McArn,  i.,  478. 
Edmonds,  Harger  ».,  ii.,  877. 
Edson,  Wooley  v.,  ii.,  933. 
Edwards  v.  Bonneau,    i.,  400,  ii., 
S20. 
Buckhalter  v.,  ii.,  932. 
v.  Davis,  i.,  409. 
Hoper  v.t  i.,  477. 
Morris,  v.,  i.,  428. 
State  v.,  i.,  411. 
Eggler  v.  State,  i.,  395. 
Eggleston,  Bridge  v.,  ii.,  902,  984. 
Elder.  Keiffer®.,  ii.,  1004. 
Eighth  Avenue  R.  R.  Co.,  Maverick 

®.,  i.,  273. 
Eldred  ®.  Haslett,  ii.,  933. 
Elkinsfl  .  Hamilton,  i.,  477. 
Elliott®.  Council,  i.,  4'20. 

Crawford  ».,  ii.,  693. 
Johnson  ».,  i.,  477. 
Leak  v.,  i.,  33. 
®.  Piersall,  ii.,  846. 
®.  Eslava,  ii.,  925. 
c.  Stoddard,  i.,  477. 


n<o 


AMERICAN    CASES     CITED. 


Ellis  t.  Jeans,  ii.,  930. 
v.  Park,  i.,  408. 
v.  People,  i.,  451. 
v.  Portsmouth,     &c.    R.    R. 

Co.,  ii.,  719. 
Stover  v.,  i.,  404. 
Union  Bank  v.,  ii.,  531. 
Elston  v.  Kinnicott,  i.,  420. 
Elsworth,  Strong^.,  ii.,  932. 
Elwoxl   v.    Lannon's   Lessee,    ii., 

928. 
Ely,  Faubault  ®.,  I,  398. 
Jackson  ».,  ii.,  842. 
Kimberly  v.,  ii.,  928. 
Silvis®.,  ii.,  848. 
Embury,  North  America  Bk.  ®.,  i., 

812. 
Emerson  v.  Lowell  Gas  Light  Co., 
ii.,  874. 
Stinchfield  v.,  ii.,  G93. 
v.  White,  ii.,  694,  846. 
Commonwealth     v.,     i., 

398,  ii., 
Gower  v.,  ii.,  988. 
Emmet,  Eagle®.,  ii.,  693,  695. 
Emmert,  Thompson  v.,  ii.,  926. 
Emmonds  v.  Oldham,  ii.,  718. 
Emmons  v.  Stahlnecker,  i.,  391. 
Enders  v  Richards,  ii.,  901. 
Enders  v.  Sternberg,  i.,  399. 
Engleman  v.  State,  i.,490. 
English,  Winston  «.,  i.,  259. 
Ensign  v.  Sherman,  i.,  33. 
Entreken  v.  Brown,  ii.,  579. 
Epps  v.  State,  i.,  490,  ii.,  985. 
Equitable  Life  Ins.   Co.  v.  Patter- 
son, i.,  727. 
Erickson  v.  Smith,  i.,  304,    ii.,  890. 
Erskine  v.  Davis,  ii.,  637. 
Eskridge  v.  State,  ii.,  913. 
Eslava,  Doe®.,  i.,  410,  414. 

Elliot  ®.,  ii.,  925. 
Estelletto,  Dugas  ®.,  ii.,  551. 
Eubanks,  Parris  ®.,  i.,  414,  417. 
Euperrier  v.  Dantrive,  i.,  478. 
Eustace,  Hanson  ®.,  i.    399,  404. 


Evans  ®.  Boiling,  i.,  402. 
®.  Evans,  i.,  55. 
®.  Jones,  i.,  477. 
Hinds  v.,  i.,  816. 
Miller®.,  ii.,  621. 
Reinhardt  ®.,  i.,  259. 
Robertson  v.,  i.,  419. 
®.  State,  i.,  395. 
Spring   Garden,    &c,     Ins. 

Co.,  v.,  i.,  404. 
®.  Story  Co.,  ii.  867. 
Streeter  v.,  i.,  259. 
Tenney  v.,  ii.,  847. 
Everingham  ®.  Mesroon,  ii.,  842. 
Exchange  Bank  v.  Monteath,    ii.r 
1050. 
&c,    Ins.    Co.,    Mayor 
&c,    of  N.  Y.,  ®.,  \.r 
420. 
&c,  Ins.    Co.,   Prieger 
v.,  i.,  409. 
Exeter®.  Brighton,  ii.,  711. 

Fagin,  Church  ®.,  ii.,  718. 
Fail  v.  McArthur,  i.,  478. 
Failles,  Chickering  v.,  i.,  499. 
Fairbanks,  Wells  ®.,  ii.,  846. 
Fairly  ®.  Fairly,  i.,  414. 
Fales,  Jones  ®.,  i.,  411. 
Falkner  ®.  Beers,  i.,  398. 
Fall,  Gunier  v.,  i.,  398,  ii.,  819. 
Falsom  ®.  Scott,  i.,  816. 
Fancher  v.  De  Montegro,  i.,  411. 
Fanning  ®.  State,  i.,  392. 
Faribault  ®.  Ely,  i.,  398,  399. 
Farmer  v.  Turner,  i.,  478. 
Farmers',  &c.  Bank  ®.  Lonergn,  i., 
398  ii.,  819. 
Bank,  Chew  v.  ii.,  986. 
®.      Leonard,      ii., 

621. 
Sasscer  v.,  i.,  408. 
v.  Vail,  i.,  33. 
Loan,  &c.  Co.,   Breasted 
v.,  i.,  727. 
Farnsworth,  Kerney  v.,  ii.,  932. 


AMERICAN    CASES    CITED. 


1151 


Farnsworth  ®.   Sharp,  i.,   398,  ii., 

819. 
Farr  ®.  Payne,  ii.,  687. 
Fair,  State  v.,  i.,  499. 
Farrant,  Sparrow  ®.,  i.,  459,  463. 
Farrar  ®.  Merrill,  ii.,  644. 
Farrell  ®.  Bean,  i.,  421. 
Farrel®.  State,  i.,  393. 
Farrer  ®.  State,  ii.,  984. 
Farrish,  State  ®.,  ii.,  635. 
Farron,  Disbrow  ®.,  i.,  438. 
Far-well,  Ryerss  v.,  ii.,  934. 
Fassett,  State®.,  ii.,  982. 
Faulk  v.  Faulk,  i.,  410. 
Faulkner  ®.  Whitaker,  ii.,  862. 
Farance,  Pierce  v.,  ii.,  900. 
Feagan  ®.  Cuneton,  i.,  479. 
Fearn,  Searcy  v.,  i.,  490. 
Felix  ®.  State,  i.,  490. 
Fellows,  Dole  ».,  ii.,  1050. 

®.  Menasha,  i.,  411. 
Felter,  State®.,  i.,  392. 
Felton  ®.  McDonald,  ii.,  532. 

enne,  Jordon  ®.,  i.,  402. 
Fenner,  Smith  v.,  i.,  450. 
Fennimore,  Justices'  Board  of®.,  i., 

402. 
Ferdinand  v.  State,  i.,  409. 
Ferguson,  Jefferson  County,  S.  P. 
v.,  ii.,  644. 
State  v.,  1,  117. 
®.  Staver,  ii.,  900. 
Patten  ».,   i.,   478,    ii., 
893. 
Fernald,  Willis  ®.,  i.,  420. 
Fernandy,  Ex  parte,  i.,  191. 
Ferriday  ®.  Selser,  ii.,  900. 
Ferrie,  Caujolle®.,  ii.,  626,  845,846. 
Ferris  ®.  People,  i.,  392. 
Field,  Adams  ®.,  i.,  438. 
Kendell  v.,  i.,  433. 
Ocean  Ins.  Co.,  ®.,i.,  410. 
Fields,  State®.,  ii.,  908. 
Fife  ®.  Commonwealth,  i.,  393,  ii., 

913. 
Fiheld  c.  Richardson,  i.,  478. 


Filer  v.  New  York  Central  R.  R 

Co.,  i.,  476. 
Filton,  Sauger  v.,  ii.,  923. 
Findall.  Donley®.,  i.,  420. 
Findlay,  Heaton  v.,  ii.,  987. 
Findley  v.  State,  ii.,  531,  539. 
Fink,  King  v.,  i.,  420. 
Finkler,  Cook  ».,  ii.,  932. 
Finley,  Dohson  v.,  i.,  414. 
Finn  ».  Commonwealth,  ii.,  914. 
Finney  v.  Boyd,  ii.,  1000. 
First  German,  &c,  Congregation, 
ii.,   868. 
Long  v.,  304. 
Fish  v.  Skut,  ii..  579. 
Fisher,  Bumpus  v.,  ii.,  636. 
v.  Peojile,  i.,  392. 
v.  Ronalds,  i.,  190,  193. 
State  v.,  ii.,  914. 
Fiske,  Lyman  ».,  ii..  711. 
Fitch  v.  Chapman,  ii.,  851. 
Fitzgerald,  Adams  v.,  i.,  812. 
r.  Cox,  i.,  258. 
v.  People,  i.,  52. 
Fitzhugh,  State  v.,  i.,  115,  144. 
Fitzpatrick,  Hill®.,  i.,  814. 
Flanders  v.  Davis,  ii.,  41. 
Flanigan  ®.  State,  i.,  245. 
Flanigen  ®.  Washington  Ins.  Co* 

i.,  412. 
Flash,  Blake  v.,  i.,  401. 
Fleming,  Beere  v.,  ii..  1006. 
Byrd  v.,  499,  551. 
r.  Clark,  i.,  826. 
Fletcher  ®.  Jackson,  i.,  812. 

Weaver  v.,  i.,  161,  419. 
Fletcher  v.,  Caithorp,  i.t 
30. 
Flewellen,  Drake  v.,  i.,  410 
Flint,  Dyer®.,  i.,  411. 

Lowell  ®.,  i.,  399. 
Flournoy,  Smitlier  v.,  i.,  481» 
Floyd  ®.  Johnson,  i.,  408. 

v.  Ricks,  i.,  408. 
Floyd  ®.  State,  i.,  394. 
1  Flynn  v.  Coffee,  ii.,  693. 


1152 


AMERICAN    CASES    CITED. 


Flynn,  Kenney  ».,  i.,  451. 
Folger,  Anderson  v.,  i.,  410. 
Folkes  v.  Chudd,  ii.,  873. 
Follett  0.  Weed,  ii.,  1050. 
Folsom  v.  Chapman,  i.,  258. 
Forbes,  Basshor  v.,  i.,  101,  419. 
Foreman,  Alexander  v.,  i.,  820. 
Ford,  Gifford  d.,  i.,  438. 

v.  Manson,  i.,  398,  ii.,  819. 
Ruth  r.,  [.,  189. 
V.  Simmons,  i..  499. 
State  v.,  i.,  490. 
Forist,  State  ».,  ii.,  590. 
Forrest,  Mossman  v.,  i.,  408,  409. 
Forsaith  v.  Clark,  ii.,  032,  093. 

v.  Stickney,  ii.,  SG2. 
Forward  v.  Harris,  i.,  400,  ii.,  820, 

1040. 
Forsyth  v.  Day,  ii.,  932. 
Foster,  Re,  i.,  259. 

v.  Brooke,  ii.,  842. 
Daniels  v.,  i.,  259. 
v.  Hall,  ii.,  711. 
v.  McGraw,  i.,  420. 
Morrill  v.,  i.,  478. 
Foulke,  U.  S.  v.,  i.,  391. 
Fouts  v.  State,  ii.,  911. 
Foulton,  Divers  v.,  i.,  403. 
Fowke,  Kennedy  v.,    i.,   398,  ii., 

819. 
Fowler  v.  ^Etna  Ins.  Co.,  i.,  490. 

People  v.,  ii.,  907. 
Fox®.  Hilliard,  ii.,  718. 
v.  Lambson,   i.,    817. 
Fraley,  Miller  ».,  ii.,  579. 
Fralick  v.  Presley,  i.,  402. 
Francis,  Ocean  Ins.  Co.  *.,  i.,  33. 
Franklin,  Ex  parte,  i.,  428. 
Whittierw.,  i.,490. 
v.  Woodland,  i.,  477. 
Fratick  v.  Presley,  ii.,  850. 
Fraux  v.  Fraux,  i.,  399. 
Frazier,  Coleman  v.,  ii.,  851. 
Frazer  v.  Hunter,  ii.,  843. 
Frazier  v.  Pennsylvania  R.  R.  Co., 
i.,  490. 


Fredenberg,  ii.,  987.  ' 
Frederick  v.  State,  ii.,  907. 
Freeland,  Brown  v.,  ii.,  718. 
Freeman,  Clark  v.,  i.,  450. 

State  v.,  i.,  114,  ii.  984, 
Union  Bank  v.  i.,   34. 
French,  Jackson  v.,  ii.,  980. 

Plumer,  v.,  i.,  477. 

v.  Smith, ii.,  985. 

v.  State,  i.,  391. 
Friedlander,  Selby  v.,  i.,  420. 
Frie's  case,  ii.,  985. 
Frier,  Jackson  v.,  i.,  812. 
Fries,  United  States®.,  ii.,  1040. 
Frink,  Shields  v.,  i.,  820. 
Frisbie,  Russell  v.,  477. 
Frith  v.  Spragne,  i.,  410. 
Frost  v.  Brown,  i.,  499. 

v.  Hollo  way,  i.,  199. 
Fry  v.  Bennett,  ii.,  507. 
Frys,  Sheppard  v.,  i.,  450. 
Fulkerson,  State®.,  i.,  729. 
Fuller,  Horn  v.,  ii.  718. 

Saunders  v.,  ii.,  840. 
Fullerton  v.  Gaylord,  ii.,  1047. 
Fullis  v.  Griffith,  i.,  813. 
Fulton  v.  Hood,  ii.,  878. 

v.  McCracken,  ii.,  987. 
Furber  v.  Hilliard,  ii.,  875 . 

Gage,  Kelly  ».,  ii.,  530. 
v.  Parker,  i.,  33. 
Gagerty,  Smith  v.,  ii.,  873. 
Gaines  v.  Commonwealth,  i.,  392. 

Sturdevant  v.,  i.,  810. 
Galacar,  United  States  v..  ii.,  018k 
Galbraith.  Cooper,  S.  P.  «.,ii.,G24. 
Gale,  Arther  ».,  i.,  402. 
v.  People,  i.,  394. 
Gallahan  i\  State,  L,   393. 
Gallaher  v.  Williamson,  ii.,  988. 
Gallop,  Griswold  v.,  i.,  411. 
Gallup,  Derby  v.,  ii.,  870,  900. 
Gallupe,  Heflron  v.,  ii.,   980. 
Galvin,  Barry  v.,  ii.,  1047. 
Gamble  v.  Johnson,  iM  479. 


A  ME  RICA  N     CA  SES     CI  TED. 


"53 


Gandolfo  v.  State,  i.,  490. 
Gandy,  Hanley  v.,  i.,  451. 
Gant,  Rippyw.,  ii.,  567. 
Garber  v.  State,  i.,  478. 
Garden  v.  Garden,  ii.,  695. 
Gardiner  v.  Peterson,  ii.,  1048. 

v.  People,  i.,   392. 
Gardnei  v.  Buckbee,  ii.,  1005. 

Goddard  v.,  ii.,  986. 

».  Lamback,  i.,  52. 

v.  People,  i.,  478. 

v.  Sharp,  ii.,  930. 

Shaw  v.,  ii.,  719. 
Garighe  v.  Gosche,  ii.,  1047. 
Garlinghouse  v.  Whitwell,  ii.,  934. 
Garr,  Goodwin  v.,  ii.,  579. 
Garratt,  Schuraan  v.,  ii.,  922. 
Garrett  v.  Crooks,  i.,  421. 
Garrick,  Darby  v.,  i.,  402. 
Gaspard,  Barbina.,  i.,  421. 
Gates  v.  Moury,  ii.,  900. 
Parisli  v.j  ii.,  987. 
v.  Ppople,  ii.,  909. 
Galling  v.  Newell,  i.,  421. 
Gauche,  Whitney  ■»;.,  i.,  409. 
Gaughe  v.  Laroche,  ii.,  1047. 
Gauthmey,  Winston  v.,  i.,  414. 
Gavin  v.  Williams,  i.,  259. 
Gay   v.  Union,   &c.,  Ins.    Co.,   i., 

727. 
Gaylord,  Fullerton  v.,  ii.,  1047. 

McKenky  ».,  ii.,  875. 
Gayoso  v.  Delaroderie,  i.,    421, 

ii.,  624. 
Gee,  Roberts  v.,  ii.,  1046. 
Geinter,  Sally  v.,  i.,  399. 
Geisenberger,    Commonwealth    v., 

i.,  392. 
Gelston  v.  Hoyt,  ii.,  687. 
Gening  v.  State,  i.,  393. 
George,  Greer  v.,  ii.,  718. 
Georgia  R.   R.   Co.  v.    Willis,  ii., 

719. 
Getty,  Lee  v.,  ii.,  930. 
Gibbs  v.  Linabury,  i.,  305. 
Gibbes  v.  Vincent,  ii.,  695. 


Gibbons,  Isham  v..  ii.,  711. 
Gibson,  Crowther  v.,  i.,  477. 
Giddings,  Shepherd  ».,  i.,  400,  ii., 

8-20. 
Gifford  v.  Ford,  i.,  438. 
Gilbert,  Cheemasero  v.,  i.,  410. 

v.  Gilbert,  i.,  478. 

Glass  ».,  ii.,  645. 

v.  Moline,  &c.  Co.,  i.,  409. 

United  States  v.,  ii.,  539. 
Gilchrist  v.  Martin,  ii.,  850. 

v.  McLaughlin,  ii.,  844. 
Gilders,  Catlic  v.,  ii.,  536. 
Giles  v.  OToole,  ii.,  877. 
«.  State,  i.,  391. 
v.  Wright,  i.,  258. 
Gilkey,  McComb  «.,  ii.,  930. 
Gill,  Durham  v.,  i.,  420. 
Gill  man  v.  Sigman,  i.,  479. 
Gilland  v.  Sellers,  i.,  411. 
Gilleland  v.  Martin,  ii.,  692. 
Gillet  v.  Phelps,  i.,  477. 
Gilman,  Reddington  ».,  i.,  404. 

Robinson  v.,  i.,  414. 
Gillman,  Small  v.,  i.,  478. 
Gilmer  v.  McVairy,  i.,  259. 
Gilmore  v.  Wale,  i.,  403. 
Gilsen,    Ardesco    Oil    Co.    v.,    i., 

304. 
Gilson,  Aides  Co.  Oil  Co.  ».,   ii., 
867. 
v.  Gilson,  i.,  433. 
Ginocho,  Giberton  v.,  ii.,  1046. 
Gipson,  Lyman  v.,  ii.,  862. 
Girard  Will  case,  ii.,  627. 
Gittinas,  Hall  v.,  i.,  414. 
Givens,   State  v.,  i.,  451,  439,  ii. 

877. 
Glass  v.  Gilbert,  ii.,  645. 
Glassell,  Waddell  v.,  i.,  420. 
Gledill,  Barton  v.,  i.,  278. 
Glenn  v.  Rogers,  ii.,  812. 
Glolinger,  Goddard  v.,  i.,  414. 
Gloucester  Bank,   Salem  Bank  f., 

i.,  450. 
Glovei-.  Drake  v.,  i.,  4t(i 


ii  54 


AMERICAN    CASES     CITED. 


Glover  r.  Millings,  ii.,  840. 

O'Neil  v.,  ii.,  8G2. 
Goblet  v.  Beechey,  ii.,  880. 
Goddard  v.  Gardner,  ii.,  986. 
1  flolinger,  i.,  414. 
Godfrey  v.  Schmidt,  ii.,  693. 
Godine,  People  v  ,  ii.,  873. 
Godlove,  Wilson  v.  ii.,  988. 
Godwin,  State  ».,  ii.,  984. 
Goekell  v.  Morris,  i.,  399. 
Goggans  v.  Monroe,  ii.,  695. 
Gold,  Dale  ».,  ii.,  33. 
Golden  v.  State,  i.,  392. 
Goldman,  Laski  v.,  ii.,  932. 
Goldborough,  Patten  v.,  i.,  403. 
Goldman,  Sullivan  r.,  ii.,  687. 
Goldsmith,  Dowell  v.,  ii.,  902. 

v.  Picard,  i.,  4!)0. 
Gonzales,  People  v.,  i.,  392. 
Goodal  v.  State,  i.,  116. 
Goodall,  Wallace  ».,  ii.,  844. 
Gooding,    United    States    v.,    ii., 

539,  618. 
Goodnow  r.  Parsons,  ii.,  848. 
Goodrich®.  Allen,  i.,  259. 

«.  Chicago,   City  of,  ii., 

1006. 
State  v.,  i.,  395. 
Goodson,  Herrins;  ».,  ii.,  576,  626. 
Goodwin*.  Appleton,  i.,  34,  409. 
Commonwealth,  v.,    391, 

392. 
Delano  v.,  i.,  419. 
v.  Garr,  ii.,  579. 
Goodyear  v.  Phtenix  Rubber  Co., 
ii.,  1046. 
v.  Vosburgh,  i.,  438. 
Gordon  v.  Bowers,  ii.,  851. 
v.  Hess,  ii.,  986. 
o.  Price,  i.,  438,  ii.,  875. 
Gore,  Harvard  College®.,  ii.,  711. 
Gosche,  Garigli /•..  ii.,  1047. 
Gossett,  State  v.,  ii..  914. 
Gould  v.  McCarty,  ii.,  1050. 

©.Norfolk  Lead  Co.,  L,  428. 
«.  Smith,  ii.,  838. 


Gould,  Taylor,  v.,  ii.,  851. 

Welch,  v.,  i.,  450. 
Gouldin  v.  Shehee,  ii  ,  609. 
Governeur  v.  Lynch,  ii.,  575. 
Governor,  The,    v.  Campbell,   ii., 

841. 
Governor,  S.  P.   v.   Campbell,  ii., 

579. 
Gower,  Dale,  v.,  i.,  479. 

v. Emery,  ii.,  988. 
Gough,  Edelen  «.,  ii.,  878. 
Graham  v.  Anderson,  i.,  411. 
Atkinson,  ».,  i.,  490. 
Bangham  «.,  i.,  34. 
v.  Chrystal,  i.,  492. 
Mears  v.,  ii.,  617. 
v.  Meek,  ii.,  930. 
v.  OTallon,  ii.,  988. 
People  «.,     i.,    478,    ii., 

987. 
Taylor  v.,  i.,  411. 
Granberry,  Cooper,  v.,  i.,  399. 
Grand   Lodge    of   Alabama,    Bur 

dini  v.,  i.,  410. 
Granger  v.   Warrington,  ii.,    983, 

988. 
Grant,  Alwell  ».,  i.,  398. 
State  v.,  ii.,  907. 
Graves,    Cumberland     (Duke   of), 
v.,  i.,  644,  692. 
v.  Keaton,  i.,  412. 
Mills  ».,  ii.,  934. 
St.  Louis  Mut.  Life  Ins. 
Co.  ».,  i.,  727. 
Gray,  Covert  ».,  ii.,  688. 

v.    Kernahan,     i.,    400.    ii. 

819. 
Payne  ».,  i.,  258 
Ring  v.,  ii.,  900. 
Grayham    v.    Commonwealth,    ii. 

727. 
Greathead,  Bunnell  «.,  i.,  279 
Great  Western    Ins.    Co.,  Carr  e. 
i.,  259. 
R.  R.    Co.  v.   Ba 
con,  i.,  499. 


AMERICAN    CASES    CITED. 


"55 


Greeley,  Concord  R.  R.  v.,  ii.,  873. 
Quimby,  ii.,  531. 
«.  Stilson,  ii.,  877. 
Greely,  Taylor  v.,  ii.,  985. 
Green  v.  Chelsea,  L,  414. 
v.  Herder,  ii.,  1047. 
Horton  v.,  ii.,  891. 
v.  State,  i.,  393,  394,  ii..  738. 
State  v.,  i.,  394,  395. 
v.  United  States,  i.,  258. 
Whitesides  v.,  i,,  259. 
v.  Wood,  ii.,  1047. 
"Worcester  v.,  ii.,  923. 
Greene,  Loomis  ».,  i.,  499. 
Greenough,  Meally  «.,  i.,    400,  ii. 
819. 
■p.  Shelden,  i.,  399. 
Greenwell,  States.,  ii.,  847. 
Greenwood  v.  Spiller,  i.,  846. 
Greer  «.  George,  ii.,718. 

Mullekin  v.,  ii.,  850. 
Gregg,  Buckinghouse  «.,i., 409,411. 

McClain  v.,  ii.,  930. 
Gregor,  State  «.,-i.,  395. 
Gregory  v.  Baugh,  i.,  499. 
State  v.,  ii.,  910. 
Young  v.,  i.,  428. 
Griffin  v.  Cranston,  i.,  33. 

v.  Marquardt,  i.,  33. 
Greup,  Haycock  ».,  i.,  451. 
Griffin  v.  Richardson,  ii.,  923. 

Rogers  v.,  ii.,  987. 
Griffith,  Fullisw.,  i.,  813. 
Griggs  v.  Smith,  ii.,  923. 
Grigsley  v.  Clear  Lake,    &c,  Co., 

ii.,  867. 
Grimes  v.  Grimes,  i.,  825. 
v.  Harmon,  i.,  420. 
Hawkins  v.,  i.,  451. 
v.  Kimball,  i.,  815. 
Grims  v.  Tidmore,  i.,  499. 
Grimes  v.  Talbot,   ii.,  847. 
Grimke  v.  Grimke,  ii.,  713. 
Grinned  v.  Phillips,  ii.,  984. 
Griswo'd  v.  Gallop,  i.,  411. 
Hawl  v.,  ii.,  934. 


Grob  v.  Cushman,  i.,  412. 

Groff  v.  Psttsburg,  &c,  R.  R.,  i. 

815. 
Grout,  Lawrence  r.  i.,  821. 
Grove,  Hoffaring  ».,  i.,  928. 
Grover,  Bancroft  ».,  i.,  420. 
Guernsey,  Roberts  ».,  ii.,  624. 
Guery  v.  Klnsler,  i.,  259. 
Guffey  v.  Deeds'  i.,  438. 
Guild,  State?-.,  ii.,  912,  916. 
Gunier  v.  Fall,  i.,  398,  ii.,  819. 
Gurney  r.   Langlands,  i.,  470. 
Gutliff  ».  Rose,  ii.,  800. 
Gutzwiller  v.  Lackman,  i.,  490. 
Guy  v.  Hall,  ii.,  847. 
Gwyn,  JSTolen  ».,  i.,  402. 

Hackett,  Barnum  v.,  i.,  478. 

Commonwealth      v.,     i., 

115. 
v.  People,  i.,  114,  115. 
Hackney,  Henderson  ».,  i.,  451. 
Hager  v.  Shindler,  ii.,  988. 
v.  Thomson,  ii.,  024. 
Haggard,  Lampton  >■..  i.,  408. 
Haight  v.  Hayt,  i.,  33. 

Warren  r.,  i..  :105. 
Haines,  Baker  o.,  i.,  4-j1. 
Hakes,  Pierce*.,  ii.,  901. 
Halderman,    Pennsylvania,    Banfc 

of,  v.,  i.,  451. 
Hale  v.  Hazelton,  i.,  499. 
v.  Portland,  ii.,  643. 
v.  Stone,  i.,  478. 
v.  Taylor,  i.,  478. 
Hales  r.  Petit,  ii.,  744,  745. 
Hal  ford,  Head  v.  ii.,  902. 
Hall,  In  Re,  ii.,  694. 

v.  Acklen,  ii.,  531. 
v.  Allen,  i.,  417. 
Bennett  v.,  ii.,  1048. 
v.  Costello,  i.,  304. 
Dexter  v.,  i.,  30-1,  ii.,  891. 
Foster,  v.,  ii.,  711. 
v.  Gittinas,  i.,  414. 
c.  Guy  v.  ii.,  847. 


1 1;6 


AMERICAN    CASES     CITED. 


Hall    v.  Hall,  i.,  278. 
v.  Haun,  ii.,  026. 
v.  Huse,  5.,  450. 
v.  James,  i.,  478. 
v.  Kellogg,  ii.,  623. 
v.  Lyon,  ii.,   987. 
McDowell  v.,  i.    399. 
Nash  v.,  i.,  499. 
Slosson  v.,  i.,  420. 
v.  State,  i.,  258,   395,  478. 
State  v.,  i.,  258,  395,  478. 
v.  Steamboat  Co.,  i.,  479. 
Hallam,  Steumbaugh  v.,  i.,  258. 
Hallenbeck,  Spanieling  v.,  ii.,  901. 
Halsey  v.  Blood,  i.,  402. 
Ham,  Biuney  v.,  ii.,  846. 
Melliken  v.  i.,  51. 
Hamburger,  Johnson  v.,  i.,  479. 
Hamley  v.  State,  i.,  393,  395,  395. 
Hamilton,  Black  well  v.,  i.,  476. 

v.  Congress,  i.,  421,  ii., 

596. 
v.  Des  Moines,  &c,  R. 

R.  Co.,  ii.,  867. 
Ekins  v.,  i.,  477. 
v.  Pease,  i.,  52. 
v.    Rice,    i.,    400,    ii., 

820. 
».  Rice,  ii.,  820. 
v.  State,  i.,  476. 
v.  Van  Swearingen,   i., 
402. 
Hammer,  Kelsey  v.,  i.,  402. 
Hammett,  State  v.,  i.,  411. 
Hammond,  Coffeen  ».,  i.,  402. 
v.  Hannin,  i.,  420. 
v.    Hopping,     i.,    400, 

402,  ii.,  819. 
v.  Inloes,  i.,  411. 
Hampden,  Rolfe  v.,  i.,  169. 
Hampton  «.  Windham,  ii.,  531. 
Hanby  v.  State,  i.,  392. 
Harjdy  r.  Johnson,  i.,  477. 
Koe  v.,  i.,  420. 
Sanford  i.,  i.,  421. 
Hanion,  Commissioners  v.,  i.,  450. 


Hanlcy  v.  Gandy,  i.,  451. 
Hanmer,  Kelsey  ».,  ii.,  815. 
Hanu  v.  Beale's  Executrix,  ii.,  559, 
Hanna,  State  v.,  i.,  113. 
Hanway,  United  States  v.,  ii.,  1040 
Hannibal,  Sawyer  v.,  ii.,  985. 

&c.  R.  R.  Co.,  Cantling 
».,  ii.,  877. 
Hannin,  Hammond  -».,  i.,  420. 
Hanrick  v.  Andrews,  i.,  34. 
Hanson  v.  Eustace,  i.,  399,  404. 

v.  Kelly,  ii.,  816. 

Stewrart  v.,  i.,  477. 
Harcourt,  Kent  v.,  i.,  471. 
Harman,  State  ».,  ii.,  910. 
Harmer,  Protection  Ins.  Co.  v.,  ii., 

873. 
Hardian,  Commonwealth  v.,  i.,  393 
Harden  v.  Kretsinger,  i.,  400,   ii., 

819. 
Harding  v.  Strong,  i.,  409. 

Thomas  v.,  i.,  398,  400. 
Hardy  ».  DeLeon,  ii.,  848. 
Harger  ».  Edmonds,  ii.,  877. 
Harlctt  v.  Hewlett,  ii.,  618. 
Harlow,     Commonwealth    v.,    ii., 

917. 
Harman,  Commonwealth  v.,  i.  312, 

391,  ii.,  909,  911. 
Harmon,  Grimes  v.,  i.,  420. 
Harper,  Burr  ».,  i.,  467,  468. 
Harries,  United  States  v.,  L,  267. 
Harriman  v.  Brown,  ii.,  851. 
Harrington,  Blood  v.,  i.,  398. 
v.  State,  ii.,  620. 
Harris,  Burnett  ».,  ii.,  1046. 

Carver  v.,  i.,  499. 

Davenport,  v.,  i.,  812. 

Forward    v.,  i.,  400,    iii., 
820,  1046,  1047. 

Iinlay  v.,  ii.,   982. 

o.  Rathbrnn.  i.,    161,    419 

v.  State,  i.,  395. 

Stater.,  i.,  732. 

v.  Story,  ii.,  617. 

v.  Whitcomb,  i.,  398. 


AM  ERIC  AM    CASES     CITED. 


1157 


Ilarrisoi),  Wadsworth  v.,  i.,  478. 
Harrod,  Cron  v.,  ii.,  841. 
Harrold,  Chapman  ».,  i.,  411. 
Harrow,  Jackson  v.,  ii.,  928. 
Hart  v.  Powell,  i.,  479. 

v.  Robinett,  i.,  400,  ii.,  819. 
v.  "Roper,  ii.,  608. 
Hartford    Bank,     Barber    v.,     ii., 
1004. 
Fire  Ins.  Co.,  O'Connor, 
*.,  i.,  189. 
v.  Wilcox, 
L,  161,  419. 
Hartland,  Woodstock  v.,  ii.,  710. 
Hartraan ■«.  Keystone  Ins.  Co.,  ii., 
727. 
Kirk  v.,  i.,  419. 
Hartwell,  Phelps,  ».,  ii.,  568. 

v.  Root,  ii.,  567. 
Harvard    College*.  Gore,  ii.,  711. 
Harvey  v.  Anderson,  ii.,  847. 
Orton  v.,  i.,  420. 
«.  Smith,  ii.,  539. 
Spaulding  v.,  i.,  499. 
v.  Thorpe,  ii.,  821. 
Hasbrock  v.  Baker,  ii.,  1046. 
Hasbrouck,  Jackson  v.,  i.,  812. 

».  Vandervoort,  i.,  278. 
Hash,  State  v.,  ii.,  914. 
Haskell,  Thompson  v.,  i.,  411. 
Haskill  v.  Commonwealth,  i.,  512. 
Haskins  v.  Steuyvesant,  ii.,  875. 
Haslett,  Eldred  v.,  ii.,  939. 
Hazlewood,  Morris  v.,  i.,  478. 
Hastings  v.  Power,  i.,  402. 
Hatch  v.  Carpenter,  ii.,  812. 

v.  Pengret,  i.,  259. 
Hatfield,  Burnham  p.,  ii.,  983. 
Hathaway,  Ryder  v.,  ii.,  591. 
Hatton  v.  Robinson,  ii.,  988. 
Haun,  Hall  ».,  ii.,  920. 
Hawkins,    Commonwealth    v.,   i., 
392,  393. 
v.  Craig,  i.,  402. 
r.  Grimes,  i.,  451. 
8.  P.,  v    State,  ii.,  908. 


Hawkins,  Wright  v.,  i.,  409,  412. 
Hawley  v.  Bennett,  i.,  414. 

v.  Griswold,  ii.,  934. 
Haws  v.  Marshall,  ii.,  841. 
Hawley  v.  Middlebrook,  ii.,  932. 
Hawser  v.  Commonwealth,  i.,  392. 
Hawthorne  v.  Hoboken,  i.,  410, 

United     States    v.    i., 
260. 
Hay  v.  Kramer,  i.,  450. 
Haycock  v.  Greup,  i.,  451. 
Hayden  v.  McKnight,  i.,  258. 
Hayes,  Prescott  v.,  ii.,  841. 
Haynes  v.  Hayward,  i.,  420. 

Ordway  v.,  i.,  305. 
Hays  v.  Asken,  ii.,  930. 
v.  Horine,  ii.,  643. 
Hostler  v.,  ii.,  925. 
v.  Riddle,  i.,  401. 
State  v.,  i.,  392,  395. 
Hayt,  Haight  v.,  i.,  33. 
Hayward,  Haynes  v.,  i.,  420. 
Haywood,  Hicks  v.,  ii.,  630. 

etc.,   Plankroad  Co.  v., 

Bryan,  ii.,  811. 
Reymen  v.,  ii.,  879. 
State    v.,    i.,    394,    ii., 

1028. 
United     States    v.,    i., 
393. 
Hazleton  v.  Batchelder,  ii.,  934. 

Hale  v.,  i.,  499. 
Hazel-wood,  Morris    .,  i..  490. 
Head  v.  Halford,  ii.,  802. 
Haald  v.  Thing,  ii.,  869. 
Heath  v.  Commonwealth,  i.,   398, 
395. 
Commonwealth  v.,   i.,   393, 

395. 
v.  Derry  Bank,  iie,  932. 
v.  West,  ii.,  841. 
Heaton  v.  Findlay,  ii.,  987. 

Rape  v.,  i.,  410. 
Hector?;.  State,  ii.,  916. 
Hedger  0.  Ward,  i.,  414. 
Hedges  V.   Wallace,  ii.,  841. 


1 158 


AMERICAN    CASES    CITED. 


Heermans  v.  Williams,  ii.,  1046. 
Heffron  v.  Gallupe,  ii.,  986. 
Heister  v.  Davis,  ii.,  986,  988. 
Helfenstein,  West  Branch  Ins.  Co. 

v..  i..  399. 
Helm  v.  Jones,  ii.,  621. 
Heman,  Merriweather  v.,  ii.,  900. 
Hemingway  v.  Smith,  ii.,  987. 
Henderson,  Burnett  v.,  i.,  411. 

v.  Cargill,  ii.,  842. 

v.  Hackney,  i.,  451. 

Hersom  ».,  ii.,  841. 

People  v.,  i.,  395. 

v.  Reeves,  ii.,  928. 

i).    State,    i.,    393,   399, 
499. 

Ward  r.  i.,  490. 
Hendrickson  i\  People,  i.,  909. 
Henry,  Ward  ».,  i.,  411. 
Hensley  v.  Tarpey,  i.,  412. 
Henshaw,  Woburn  #.,  ii.,  987. 
Henthorn  v.  Doe,  i.,  34. 
Hepburn,  Mima  Queen  v.,  ii.,  838. 
Herder,  Green  v.,  ii.,  1047. 
Herman,  Mayer  v.,  ii.,  987. 
Herndon,  Ward  v.,  i.,  840. 
Herring  v.  Goodson,  ii.,  567,  626. 
Sasser  v.,  ii.,  900. 
v.    Wilmington,    &c,    R. 

R.  Co.,  ii.,  719. 
Herrington,  Larlin  ».,ii.,  987. 
Herschfeld  v.  Devel,  i.,  412. 
Hersey,  Com.  v.,  i.,  392. 
Hersom  v.  Henderson,  ii.,  841. 
Hess,  Gordan  v.,  ii.,986. 
Hewitt,  People  v.,  i.,  439. 
v.  Prime,  ii.,  988. 
Hewlett  v.  Brown,  ii.,  1047,  1048. 

Ilaiiett  v.,  ii.,  618. 
newson,  United  States  v.,  i.,  391. 
Ilexter,  Schh  singer  v.,  i.,  481. 
Hibbard,  Peckt\,  i.,  410. 
Hickley  ''.  Kersting,  ii.,  609. 
Hickman  ».  Boti'man,  ii.,  622. 

Buford  v.,  i.,  412. 
Hicks  i.  Braduer,  i.,  189. 


Hicks  v.  Cram,  ii.,  934. 

v.  Haj  wood,  ii.,  630. 
Palmer  v.,  ii.,  648. 
Satterwhite  v.,  ii.,  901. 
Tevi^r.,  i.,  476. 
Higbee  v.  Dresser,  ii.,  987. 
Higgins  v.  Reed,  i.,  402. 

Rogers  v.,  ii.,  1000. 
Hildebrant  v.  Crawford,  i.,  259. 
Hildreth  v.  Shepherd,  i.,  259. 

State  v.,  i.,  394. 
Hill«.  Bacon,  i.,  409. 

Commonwealth  v.,  L,  393,  u.; 

981,  984. 
Cowell  v.  i.,  33. 
v.  Fitzpatrick,  ii.,  814. 
Kelton  v.,  i.,  258. 
Kernin  v.,  i.,  451. 
v.  Lord,  ii.,  643. 
v.  Morse,  ii.,  559. 
i).  Myers,  ii.,  862. 
i\  Parker,  i.,  402. 
•y.  Powers,  ii.,   848. 
Smith  v.,  ii.,  622. 
Hillegas,  Williams  ».,  i.,  414. 
Hiller  v.  State,  i.,  391. 
Hill,  Walker  ».,  i.,  259. 
Hillhouse,  Califi  ».,  ii.,  933. 
Hiliiard,  Fox  ?.,  ii.,  718. 

Furber  v.,  ii.,  875. 
Hillyer,  Wilson  v.,  i.,  478. 
Himmelrich,    Crossgrove    v.,    ii., 

847. 
Hinchman,  State  v.  ii.,  636. 
Hindekoper  v.  Colton,  ii.,  982. 
Hinds  v.  Evans,  ii.,  816. 
Hingham,    Braintree   ».,    ii.,   847, 

923. 
Ilinneman  v.  Rosenback,  i.,   428. 
Hines,  Wilson  v.,  ii.,  801. 
Hinsdale  v.  Larned,  ii.,  927. 
Hix  v.  Whittemore.  ii.,  689. 
Hizer  v.  State,  l..  411. 
Hobbs,  Reed«.,  ii.,  867. 
State  v.,  ii.,  914. 
Hoboken,  Hawthorne  v..   i.,  410. 


AMERICAN    CASES     CITED. 


1 1 59 


Hodges  v.  Hodges,  ii.,  902. 

v.  Lawrence,  i.,  142. 
Hoffaringi).  Grove,  ii.,  928. 
Hoffman,  McDermott  v.,  i.,  420. 

v.  Smith,  ii.,  988. 
Holbrook  o.  Burt,  i.,  421. 

■o.  School  Trustees,   ii., 
812. 
Hnlcomb,  Wolcott  ».,  i.,  499. 
Holland  v.  State,  i.,   394. 
Hollers  State,  i.,  395. 
Hollister,  Carpenter  v.,  ii.,  900. 
Holloway,  Frost  v.,  i.,  199. 
Holrnan  v.  Collins,  i.,  410. 
Holme,  State  v.,  i.,  393,  394. 
Holmes  v.  All,  i.,  450. 

v.  Barbin,   ii.,  986. 
v.  Johnson,  ii.,  693. 
Holton,  Meek  v.  ii.,  850. 
Homan,  Morey  «.,  i.,  433. 
Homans,  Page  ».,  ii.,  876. 
Home    Ins.    Co.,     Bonner    v.,  i., 

399. 
Homer  v.  Cilley,  i.,  414. 
v.  Wallis,  i.,  450. 
Honeyman,  Penn.  *.,  i.,  394. 
Hood,  Pulton  v.,  ii.,  878. 

v.  Hood,  i.,  477,  ii.,  687. 
McCreery    v.,    i.,    400,    ii., 
820. 
Hooker,  Ricker  v.,  ii.,  1005. 
Ili'oner,     Commonwealth    ».,    ii., 

612. 
Hooper  v.  Chism,  i.,  401. 
v.  Hooper,  i.,  278. 
v.  Moore,  i.,  410. 
Hoper  v.  Edwards,  i.,  477. 
Hoops,  Rodman  v.,  ii.,  620. 
Hopkins    v.    Commonwealth,     i., 
395. 
Dodge  v..  ii.,  637,  684. 
.  Page,  ii.,  621. 
Hopper  v.  Ashley,  i.,  45C. 
Hopping,    Hammond    v.,    j.,    400, 

402,  ii.,  819. 
Hopps  ,v.  People,  i.,  392. 


Hopper  v.  State,  i.,  395. 
Hopson,  People  v.,  i.,  395. 
Horan  v.  Weiler,  ii.,  632. 
Horine,  Hays  v.,  ii.,  643. 
Horn  v.  Fuller,  ii.,  718. 

v.  Noel,  i.,  422. 
Home,  Cristy  v.,  i.,  398. 
Horton  v.  Green,  ii.,  891. 
Hosea,  Kinney  ».,  i.,  33. 
Hosford  v.  Nichols,  i,.  34,  410. 
Hostler  v.  Hays,  ii,  925. i 
Hotchkiss,  Nichols  v.,  ii.,  900. 
Hough,  Codyr.,  i.,  401. 
Houston,  Sherwood  ».,  ii.,  838. 
Houtz,  Zeigler  v.,  i.,  414. 
Howard,  Johnson  v.,  i.,  490. 
Lanford  ».,  i.,  477. 
State  /•..  ii.,  984. 
v.  Mitchell,  ii.,  925,  926. 
».  Snelling,  ii.,  850. 
State  v.,  ii.,  913. 
Howe,  Commonwealth  <:.,  ii.,  912, 
913. 
W.,  alias  Wood,  Ex  parte, 
ii.,  546. 
Howell  v.  Hayek,  i.,   177. 
Koch  v.,  i.,  477. 
v.  Tilden,  ii.,  844. 
Howerton  v.  La  turner,  L,  259. 
Howland,  Stetson  ».,  i.,  478. 
v.  Taylor,  i.,  442. 
Howlett  v.  Howlett,  i.,  419,  420. 
Hoxie,  United  States  v.,  ii.,  1040. 
Hoy  Ten,  People  ».,  ii.,  909. 
Hoy  v.  Morris,  ii.,  986. 
Hoye  v.  State,  i.,  395. 
Hoyer  v.  Stevens,  i.,  477. 
Hoyt,  Muller*.,  i.,  399. 
Gelstou  v.,  ii.,  687. 
v.  McNeil,  i.,  410. 
Sawyer  ».,  ii..  925. 
State   v.,  i..  394, 
v.  Stuart,  i.,  439. 
Hubbard,  Davenport  v.,  ii.,  559. 
e.  Huh! >ar<  1.  ii.,  568. 
People  v.,  ii..  982,  983 


n6o 


A  ME  RICA  N     CA  SES    CITED. 


Hubbard,  Stone  ».,  ii.,  875. 

Williams  v.,  i.,  411. 
Hubbell,  Ex  parte,  i.,  258. 

v.  Hubbell,  i.,  259. 
Hudson,  Cobbet  ».,  i.,  292. 

v.     Commonwealth,     ii., 

910. 
v.  Crow,  i.,  478. 
v.  State,  i.,  114,  115,    ii., 

984,  985. 
State  v.,  i.,  114,  115,   ii., 
984,  985. 
Hueston  v.  Jones,  i.,  34. 
Hughes,  Amos  v.,  i.,  498. 
Brower  v.,  i.,  259. 
v.  Coursey,  i.,  52. 
Langdou  v.,  i.,  420. 
People  ».,  ii.,  985. 
Piles  v.,  i.,  479. 
Phelps  v.,  ii.,   693. 
Stump  ».,  i.,  414. 
Tanner  v.,    i.,    499,    ii., 
685. 
Hughey  v.  State,  i.,  395. 
Hulbut,  People  v.,  ii.,  983. 
Hull,  Burrill  v.,  i.,  278. 
v.  Lyon,  ii.,  988. 
Hum  v.  Soper,  ii.,  900. 
Hummel  v.  State,  ii.,  618. 
Hump  v.  Smith,  ii.,  710. 
Humphrey,  Bui  Ion  «.,  ii.,  529. 

v.  Humphrey  ,  i.,  490. 
Humphreys,  Donnell  ».,  i.,  420. 
Hundley,  State  v.,  i,,  392. 
Hunn  v.  Hunn,  ii.,  988. 
Hunt  v.  Carr,  i.,  421. 

v.  Collins,  i.,  404. 
Cook  v.,  i.,  812. 
Lawrence  ».,  ii.,  1006. 
McKensie  ».,  ii.,  900. 
M'Xair  o.,  ii.,  591. 
Montgomery  ».,  i.,  490. 
v.  Rousmanier,  i.,  421. 
Hunter  v.  Bilyen,  i.   421. 
Blaog  v.,  ii.,  851. 
Bond  v.,  i.,  478. 


Hunter  Frazer  v.,  ii.,  843. 

United  States  v.,  ii.,  907. 
Huntington  v.  American  Bank,  ii,, 

928. 
Huntley,  State w.,  i.,  477. 
Hurd  v.  People,  i.,  116., 
Hurdle,  Outlaw  ».,  i.,  449. 
Hurlburt,  Troup  v.,  i.,  414. 
Hurst®.  M'Neil,  ii.,  044. 
Huse,  Hall  v.,  i.,  450. 

v.  Mc  Quade,  i.,  161,  419. 
Huston  v.  Noble,  i.,  420. 

Roxbury  v.,  ii.,  575. 
Hutchins  v.  Kimmel,  i.,  422. 

United    States     Expresi 
Co.,  v.,  i.,  492. 
Hutehinpon  i\  Peyton,  ii.,  532. 
Huxley,  Norton  t.,  ii.,  1005. 
Huyek,  Howell  v.,  i.,  477. 
Hyatt  v.  Adams,  i.,  479. 

Bridges  v.,  ii..  816,  838. 
Hylton    v.   Brown,     i.,     403,    ii., 

711. 
Hyndman,  Brewer®.,  ii.,  847. 
Hypres,  Bennefield  ».,  i.,  189. 

Ibbitson  v.  Brown,  ii.,  862. 
Illinois,  &c.  R.  R.  Co.  x.  Cowles,  ii., 

719. 
v.    Johnson, 

i.,  410. 
Muldowney 
®.,  ii.,  867. 
Rlinois  Tel.    Co.,  Wright  v.,   ii., 

985. 
Imlay  v.  Harris,  ii.,  982. 

v.  Rogers,  984. 
Indianapolis,  Little  v.,  5.,  812. 
Indianapolis,    &c.    R.    R.    Co.  t 
Case,  i.,  409. 
&c.    R.    R.    Co.  v. 
Stephens,  i.,  409. 
&c.       Road       Co., 
Chance  ».,  i.,  304 
Ingersoll,  Rathbun  ».,  i.,  57. 
Ingraham,  Phoenix  v.,  ii.,  900 


AMERICAN    CASES     CITED. 


1161 


Ingraham  v.  State,  i.,  411. 
Ingram  ®.  Plasket,  ii.,  536. 
Inloes,  Hammond®.,  i.,  411. 
Inskeep  ®.  Shields,  ii.,  930. 
Insurance  Co.,  Nimick  v.,  ii.,  727. 

Terry®.,  i.,  927. 
Irvine  ®.  Irvine,  ii.,  687.    . 
Irwin  e.  McLean,  i.,  410. 

State®.,  i.,  394,  ii.,  909. 
Isaacs  ®.  Clark,  ii.,  926. 

v.  State,  i.,  394. 
Isabella®.  Pecot,  i.,  35,  ii.,  531. 
Isennour  v.  Isennour,  i.,  259. 
Iselt,  Am.  Life  Ins.  Co.  v.,  i.,  728. 
Isham  ®.  Gibbons,  ii.,  711. 

Jackson  ®.  Betts,  i.,  812. 

v.  Blankshaw,  i.,  414. 

®.  Brooks,  i.,  414. 

®.  Browner,  ii.,  846. 

®.  Christman,  ii.,  1029. 

Carver  ®.,  ii.,  930. 

®.  Commonwealth,  i.,  114. 

®.  Cooley,  ii.,  846. 

«.  Dickenson,  ii.,  984. 

®.  Davis,  i.,  414. 

».  Ely,  842. 

Fletcher  ».,  i.,  812. 

®.  French,  ii.,  986. 

®   Frier,  i.,  812. 

®.  Harrow,  ii.,  928 

®.  Ilasbrouck,  i.,  812. 

®.  Jackson,  i.,  52. 

®.  Kingsley,  i.,  403. 

®.  Livingston,  5.,  399. 

Newsom  ».,  ii.,  531. 

v.  Newton,  i.,  404. 

®.  Parkhurst,  ii.,  930. 

v.  Phillips,  i.,    451. 

r.  Root,  i.,  812 

Scott  v.,  i.,  411 

«.  Shearman,  i.,  403,  404, 

State  v.,  i.,  395,  478. 

ex  dem.  Swain  ®.  Ransom, 
ii..  879. 

v.  Vail,  i.,  402. 


Jackson  v.  Vredenburgh,  ii.,  900. 
Williams  ».,  ii..  932. 
Wood  v.,  ii.,  1006. 
Jacobs®.  Layborn,  i.,  139. 

Mitchell®.,  L,  400,  820. 
®.    United  States,  &c.    Ina 
Co.,  i.,  728. 
Jacquin  ®.  Davidson,  i.,  258. 
Jaffrey,  Peterborough  v.,  ii..  877. 
James  v.  Brownfield,  i.,  477. 

Commonwealth®.,  i.,  243. 

Hall  v.,  i.,  478. 

®.    Lawrenceburg  Ins.     Co. 

ii.,  925. 
McClelland  ».,  i.,  161,419. 
®.  Salslcr,   i.,  414. 
®.  State,  i.,  391. 
®.  Wharton,  i.,450. 
Jameson,  Chillicothe  &  Co.  ®.,  ii. 

987. 
Jane  ».  Commonwealth,  i.,  391,  ii., 
909. 
®.   The     United    States,    ii., 
536. 
Jarboe  v.  McAtee,  ii.,  043. 
Jarrett,  State  v.,  i..  411. 
Jarvis  ®.  Robinson,  i.,  411. 
Jauncey  ®.  Thome,  ii.,  1029. 
Jeanes  v.  Fredenberg,  ii.,  987. 
Jeans,  Ellis  c,  ii.,  U30. 
Jeff®.  State,   i..  394. 
Jefferson  v.  Conaway,  i.,  398.  ii.,  851 
County    v.  Ferguson,  ii., 

644. 
®.  Washington,  ii.,   711. 
Jefford  ®.  Ringgold,  i.,  402. 
Jeffries,  Smith  v.,  i.,  393. 
Jeuney,  Davis  ®.,  i.,  637. 
Jenkins,  Newman  v.,  ii.,  693. 

Pease,  ®.  ii.,  851. 
Jenkinson  ®.  State,  ii.,  986. 
Jenning  v.  Carter,  i.,  33. 
Jennings,  Bemis  /..  ii.,  559. 

Taylor   v.,  L,    279.   ii. 
1017. 
Jennison  v.  Hapgood,  ii.,  711. 


Il62 


AMLRICAN    CASES     CITED. 


Jernegan.  Comparer  'r.,  i.,  33 
Jerome,   Stale  v.,  392. 
Jessop  v.  "Wilier,  ii.,  1049. 
Jewell  v.  Center,  i.,  404,  416. 

v.  Jewell,  i.,  473. 
Jewett  v.  Banning,  i.,  395. 
Brown  ».,  ii.,  693. 
v.  Miller,  ii.,  934. 
Jim  v.  State,  i..  395,  ii.,  778. 
Jim  Ti.  People  ».,  ii.,  910. 
Joannes  v.  Bennett,  -i.,   401. 
Joe  ».  State,  ii.,  'J  10. 
Johns  v.  Johns,  i.,  478. 
Johnson  v.  Boyles,  i.,  478. 

Brad  lev  v.,  ii.,  559,  1000. 

Campbell  v.,  i.,  419. 

v.    Common    Council,    L, 

409. 
».  Daverne,  ii.,  988. 
Dole  ».,  ii.,  S77,  878. 
Gamble  v.,  i.,  479. 
Garrott  v.,  ii.,  1008. 
v.  Hamburger,  i.,  479. 
Handy  ».,  i.,  477. 
Holmes  v.  ii.,  693. 
«.  Howard,  i.,    490. 
Illinois,  &c.  R.  R.  Co.  «., 

i.,  410. 
v.  Johnson,  i.,  428,  ii.  988. 
t>.  Elliott,  i.,  477. 
Floyd  v.,  L,  408. 
Ludlow,  ii  i..  825. 
v.  McGehee,  i.,  434 
v.   N.   Y.   Central  R.    R. 

Co.,  i.,  :J05. 
^.Patterson,  ii., 847. 
v.  Pollock,  1161,  419. 
v.  Powell,   i.,  814. 
Reading  R.  R.  Co.  «.,  i., 

399. 
Ridgeley  ».,  i.,  414. 
Robinson  v.,  i.,  451. 
Sharp  ».,  ii.,  603. 
c.  State,  i.,  115,  116,  395 

47S,  ii.,  984. 
States.,  i.,  393,  394. 


Johnson  v.  Trinity Caarch,  ii.,  848 
United  States  ».,  i.,  34. 
v.  Watts,  ii.,  931. 
v.  Weed,  i.,  428. 
Ludlow  ».,  i.,  825. 
Riley  ©.,  ii.,   986. 
Jolliffe,  Lowe  ».,  i.,  160. 
Jonkins,  Rex  o.,  i.,  114. 
Jones,  Ex  parte,  i.,  481. 
Bishop  v.,  i.,  409. 
t.  Doe,  ii.,  862. 
Evans,  ».,  i..  477. 
».  Fales,  i.,  411. 
Helm  v.,  ii.,  621. 
Hueston  /•.,  i.,  34. 
v.  Jones,  i.,  2.1^. 
v.  Laney,  i.,  410. 
v.  Letcher,  ii.,  846. 
r.  Lewis,  i ,  400. 
Mobile  v.,  L,  258. 
Moore  ».,  ii  ,  842. 
r.  Morgan,  ii.,  847. 
Morgan   ».,  i.,  400,  ii.,  8ia 
v.  Overstreet,  i.,  408. 
r.  Ricketts,  ii.,  617. 
v.  Scott,  i.,  814. 
v.  State,  ii.,  717. 
State  v.,  i.,  392. 
v.  Tucker,  ii.,  869,  878. 
i).  Underwood,  ii.,  1046. 
Watson  v.,  ii.,   559. 
Williams  v.,  ii.,  531. 
Jordan  r.  Fenno,  i.,  402. 
v.  State,  ii.,  907. 
Joseph,  Tread  well  ».,  i.,  499. 
Joslin,  Kimble  p.,  i.,  398,  ii.,   819. 
Joslyn  v.  Capron,  i.,  421. 
Joyce,  Dozier  ».,  i.,  411. 

v.  Maine  Ins.  Co.,  ii.,  879, 

880. 
Smith  p.,  ii.,  567. 
Judah  v.  Trustees,  i.,  412. 
Jumpertz  v.  People,  i.,  451. 
Justices,  Dobbs  ».,  i.,  478. 

Board  of,  v.  Tennimore 
i.,  402. 


AMERICAN    CASES     CITED. 


1 1 61 


Kan  v.  Stivers,  i.,  423. 
Kane,  Bartin  v.,  i.,  402. 
Kaywood  v.  Barnett,  ii.,  846. 
Keaton,  Graves  ».,  i.,  412. 
Keegin,  Dunn  v.,  ii.,  927. 
Keech  v.  Cowles,  i.,  258. 
Keeler  v.  Dusenbury,  ii.,  1046. 

State  v.,  i.,  391. 
Keen,  United  States  v.,  i.,  450. 
Keene,  State  v.,  i.,  395,  476. 
Keener  v.  The  State,  i.,  395,  490. 
Keetcb,  Livingston  v.,  i.,  259. 
Keffer,  Penn.  0.,  ii.,  982. 
Keiffer«.  Ehler,  ii.,  1004. 
Kellar  v.  Savage,  i.,  400,  ii.,   819. 
Kellogg,  Boynton  v.,  i.,  490. 

Hall  v.,  ii,  623. 
Kelly  v.  Gage,  ii.,  536. 

Hanson  v.,  i.,  816. 

King  v.,  ii.,  718. 

v.,  McGuire,  ii.,  846. 
Keel  v.  Ogden,  ii.,  925. 
Kelley  v.  Campbell,  i.,  477. 
Kelly  v.  Paul,  i.,  450. 

Plato  v.,  ii.,  1047. 

v.  State,  i.,  221. 

Webb  v.  I.,  477,  478. 
Kelsey  v.  Hanmer.  i.,  402,  ii.,  815. 
Kelton  v.  Hill,  i.,  258. 
Kemphill  «.  McClemans,  i.,  815. 
Kendall®.  Field,  i.,  433. 
Kenevals,  Wiswall  v.,  ii.,  851. 
Kennedy  v.  Fowke,  i.,  398  ii.,  819. 
Lough er  v.,  i.,  408. 
v.  People,  i.,  392. 
v.  Reynolds,  i.,  826. 
Kenney  v.  Flynn,  i.,  451. 
Kent  v.  Hareourt,  i.,  479. 
Kentucky,  Bank  of,  v.  Mc Williams, 

i.,  399. 
Kerby  v.  State,  i.,  477. 
Kermott  v.  Ayer,  i.,  408. 
Kernahan,    Gray   v.,    i.,    400,    ii. 

819. 
Kernin  v.  Hill,  i.,  451. 
Kerr  v.  Chalfant,  ii.,  930. 


Kerr  Kctb  ».,  ii.,  901. 

■v.  Knykendall,  i.,  419. 
Kerrians,  People  v.,,  ii.,  880. 
Kersting,  Hickley  v.,  ii.,  609 
Ketelas.  Buckley  v.,  i.,  33. 
Ketland  v.  Bissett,  i.,  490. 
Keystone  Ins.   Co.,  Hart  man  v.  i., 

727. 
Keywood,  Norton  v.,  i.,  404. 
Kidd,  Tullis  v.,  ii.,  869. 
Kidder  v.  Blaisdall,  i.,  812. 
Kietb  v.  Kerr,  ii.,  901. 
State  v.,  i.,  394. 
Kilburn  v.  Ritchie,  ii.,  863. 
Kile,  Rowt  v.,  i.,  438. 
Kilburn  v.  Bennet,  ii.,  687. 
Kilgore  0.  Buckley,  i.,  33. 
Kille,  Campion  v.,  i.,  410. 
Killebrew  v.  Murphy,  i.,  481. 
Kilpatrick   v.    Commonwealth,    i., 

114,  115,  394,  411. 
Kimball,   Androscroggin  Ban..   «., 
ii.,617. 
Commonwealth      ».,     j  , 

393,  512. 
Grimes  0.,  i.,  815. 
«.  Myers,  i.,  420. 
Kimberly  0.  Ely.  ii.,  928. 
Kimble  v.  Joslin,  i.,  398,  ii.,  !  .1 
Kimborough,  State  v.,  L,  405. 
Kimmell,  Hutcbins  v.,  i.,  42V. 
King  v.  Barrett,  ii.,  986. 
Brown  v.,  ii.,  687. 
Buchanan  v.,  ii.,  030. 
v.  Doolittle,  ii.,  609. 
V.  Fink,  i.,  420. 
.  Kelly,  ii.,  7 IS. 
V.  King,  i.,  27S. 
v.  Lowcry,  i.,  398. 
v.  Smith,  ii.,  1046. 
Stapleton  ».,  i.,  421. 
v.  State,  ii.,  908. 
Vrooman  v.,  ii.,  900. 
Kingdom,  Dann  ».,  i.,  278 
Kingen  v.  State,  i.,  498. 
Kingfield,  Phillips  v.,  ii.,  711 


1 164 


AMERICAN    CASES     CITED. 


Kingsbury  v.  Buchanan,  ii.,  927. 

State  v.,  i.,  305. 
Kiugsley,  Jackson  ».,  i.,  403. 
Kirby,  McDonald  v.,  i.,  481. 
Kingston,  Eagleton  v.,  i.,  472. 
Kinley  v.  Crane,  ii.,  844. 
Kinney,  Bat  r  v.,  i.,  259. 

v.  Hosea,  i.,  33. 
Kinnicolt,  Elston  ».,  i..  420. 
Kinsler,  Query  ».,  i.,  259. 
Kirby,  People  .••.,  i.,  31)4. 

Stale  c.  ii..  907,  914. 
Kirk  r.  Hartman,  i.,  419. 
Kirkland,  Wilson  v.,  ii.,  876. 
Kirkpatrick  v.  Langphier,  ii.,  621. 
Kirney  v.  Farnsworth,  ii.,  932. 
Klein  v.  Landman,  ii.,  602. 
Klingler,  State  ■».,  i.,  392,  ii.,  S69. 
Knablanch  v.  Krccuhnakel,  i.,  421. 
Knapp  v.  Alton eyer,  i.,  414. 

Common  wealth  *.,  i.,  393, 
ii.,  772,  909. 

Slate   c,  i.,  392,  393,  395, 
499. 

Union  Bank  v.,  i.,  450. 
Knickerbocker    Life    Ius.    Co.    v. 

Peters,  i.,  728. 
Knight,  State  /•..  i.,  392. 
Knights,  Campbell  ».,  ii.,  929. 
Knouse  v.  8h effort,  i.,  478. 
Knowlton,  Smith  ».,  ii.,  693. 
Kobbe,  Smith  v.,  L,  304,  ii.,  878. 
Koch  v.  Howell,  i.,  477. 
Koe  v.  Handy,   i.,  430. 
Kohn,  Donkle  v.,  i.,  212. 
Kolb«.  Whitely,  i.,  479. 
Kottwitz  v.  E  ii.,  862. 

Kowing  v.  Mauley,  i.,  438. 
Kramer,  Hay  v.,  i.,  450. 
Kreismer,  Schmid  ».,  i.,  258. 
Kretsiuger,  Hardin  v.,  i.,  400,  ii., 

819. 
Kiiel  v.  Commonwealth,    i.,    392, 

394,  ii.,   727. 
Krouchuakcl,    Knablanch,    v.,    i., 
421. 


Kuhri,  Weh rum  «.,  i.,  52. 
Kurtz,  United  States  v.,  ii.    907. 
Kuykendall,  Kerr  v.,  i.,  419. 
Kyle,  Bennis  v.,  ii.,  1048. 

v.  Calmes,  L,  499. 
Kyles,  Clements  v.,  ii.,  844. 

La  Beau  v.  People,  i.,  395. 
Lackman,  Gutswiller  v.,  i.,  490. 

Suiter  v.,  ii.,  024. 
La  Farge  v.  La  Farge  Ins.  Co.  ii., 

1046. 
Laflin  v.  Herrington,  ii.,  987. 
La  Grange  v.  Chapman,  i.,  409. 
Lagoye  v.  Primar,  ii.,  929. 
Lake  Merced  Water  Co.  c.  Cowles, 

i.,  412, 
Lake  v.  People,  ii.,  869. 
Laliyer,  State  v.,  i.,  393. 
Lamb,  Black  v.,  ii.,  847. 
Rowan  v.,  ii.,  631. 
State  v.,  I,  391.  ii.,  909. 
Zimmerman  c.  ii.,  901. 
Lambaek,  Gardner  ».,  i.,  52. 
Lambert  0.  Lambert,  i.,  398. 
Lambeth  v.  State,  i.,  116. 
Lambson,  Fox  v.,  i.,  817. 
Lampley  v.  Scott,  i.,  479. 
Lampton  v.  Haggard,  i.,  408. 
Lancaster,  Bank  of,  v.  Whitehill,  i.. 
451. 
Clarke  v.,  i.,  420. 
Shanks  v.,  i.,  414. 
Lancen  «.  Phoenix  &c.  Ins.  Co.,  iM 

420. 
Lancy  v.  Bryant,  ii.,  609. 
Lane  v.  Cole,  ii.,  1046. 
Langdon  v.  Hughes,  i.,  420. 
White  v.,  ii.,  932. 
Langlands,  Gurney  v.,  i.,  470. 
Land  v.  Patteson,  i.,  411. 

v.  Tyngsborough,  i.,  477. 
Landers,  Corkhill  v.,  ii.,  932. 
Landry  v.  Martin,  ii..  631. 
Landman.  Klein  r.,  ii.,  602. 
Lane,  Robinson  v  ,  i.,  477. 


AMERICAN    CASES     CITED. 


1 1 65 


Lane  v.  "Wilcox,  ii.,  877. 
Laney,  Jones  ».,  i.,  410. 
Langford,  State  v.,  i.,  394. 
Langphier,  Kirkpatrick  ».,  ii.,  C21. 
Lannon's  Lessee,   El  wood  v.,    ii., 

928. 
Lansing  v.  Montgomery,  ii.,  923. 
Larned,  Hinsdale  ■».,  ii.,  927. 
Laroche,  Gaughe  v.,  ii.,  1047. 
Larrabee,  Lwinell  v.,   i.,   400,   ii., 

819. 
Laski  i).  Goldman,  ii.,  932. 
Lasselle  v.  Barnett,  ii.,  932. 
Lattimer,  Howerton  v.,  i.,  259. 
Latimer  v.  Sayre,  i.,  258. 
Laufeac  v.  Mestier,  i.,  411. 
Lauger  v.  Tilton,  ii.,  923. 
Law  v.  Cross,  i.,  478. 
v.  State,  ii.,  539. 
Lawrence  v.  Brown,  ii.,  934. 

®.  Grout,  ii.,  821. 

Hodges  v.,  i.,  142. 

v.  Hunt,  ii.,  1006. 

State  ».,  i.,  2G2,  392. 

United    States    ■».,     i., 
394,  ii.,  567. 

v.    Wright,   2  Duer,  i., 
32. 
Lawrenceburg  Ius.  Co.,  James  v., 

ii.,  925. 
Lawton  v.  Chase,  i.,  304,  ii.,  877. 
Lajborn,  Jacobs  v.,  i.,  139. 
Leach,  Coye  v.,  ii.,  534. 
Leadbetter,  McCesky  v.,  ii.,  930. 
Leak  0.  Elliot,  i.,  33. 
Leavitt  v.  Simes,  i.,  398. 
Le  Barron,  Chandler  v.,  i.,  451. 
Le  Brun,  Ex  parte,  i.,  350. 
Le  Claire,  Masterson  v.,  i.,  411. 
Ledbetter  v.  Morris,  i.,  398. 
Ledwolf,  Oppenheim  v.,  ii.,  534. 
Lee  v.  Getty,  ii.,  920. 
v.  State,  i.,  267. 
Thompson  v.,  i.,  499. 
Leeds  v.  Brown,  ii.,  1047. 
Leffler  v.  Allard,  i.,  478. 


Lefferts  v.  Brampton,  ii.,  1050. 
Legrand    v.    Sidney    College,    i., 

412. 
Leggatt,  Seward  v.,  i.,  504. 
Leiber  v.  State  i.,  115. 
Leland  v.  Cameron,  ii.,  815. 

Durkee  v.,  i.,  402. 
Leonard,    Farmers'    Bank   v.,    ii 
621. 
v.  Smith,  i.,  420. 
State  ».,  i.,  395. 
Lenhart,  Hite  v.,  i.,  33. 
Lenoir  v.  Rainey,  ii.,  579. 
Lenon,  Commonwealth  v.,  i.,  392. 
Lenox,  Commonwealth  v.,  i.,  116. 
Leport  w.Todd,  ii.,  687. 
Lepp,  McCray  «.,  i.,  420. 
Leppoc   v.  National,  &c.  Bank,  i., 

420. 
Leslie,  Drummond  v.,  ii.,  985. 
Lesseps  v.  Weeks,  ii.,  624. 
Letcher,  Jones  v.,  ii.,  846. 

v.  Letcher,  L,  161,  419. 
Letts  v.  Brooks,  ii.,  693. 
Levan,  Bellas  v.,  i.,  414. 
Levy,  Mathilde  ».,  i.,  304,  492. 

v.  State,  i.,  410. 
Lewirc  v.  Dille,  i.,  398,  ii.,  819. 
Lewis,  Cross  v.,  ii.,  649. 

Dickinson  v.,  ii.,  719. 

Jones  v.,  i.,  400. 

Martin  v.,  i.,  420. 

Penn.  v.,  i.,  394. 

Putinan  v..  i.,  428. 

Rose  v..  400,  ii.,  819. 

v.  State,  i.,  114. 

Willis  v.,  i.,  724. 
Lide,  Brice  v.,  i,  478. 
Life  and  Fire  Ins.  Co.  v.  Mechanics, 

Ins.  Co.,  i.,  404,  ii.,  r<05. 
Light,  Matthews  v.,  ii.,  932. 

Maxwell  v.,  i.,  399. 
Lilley,  Cliifton  v.,  i.,  815. 
Lilly  v.  Waggoner,  ii.,  41. 
Linabury,  Gibbs  v.,  305. 
Lincoln  v.  Ballette,  i.,  411. 


n66 


AMERICAN    CASES     CITED. 


Lincoln  t.  Battelle.  i.,  134. 
Brown  v.,  i.,  450. 
Corinth  ».,  i.,  477. 
Licdenmuller  v.    The   People,  ii., 

627. 
Lindsay,  People  v.,  i.,  302. 

v.  Williams,  i.,  411. 
Link,  Bean  v.,  ii.,  983. 
Lingo  v.  State,  i.,  395. 
Link,  Spaunhorst  v.,  i.,  305. 
Lipscomb,  State  v.,  i.,  481. 
Litchfield,  State  v.,  i.,  267. 
Little  v.  Bcazley,  i.,  451,  ii.,  875. 
Devling  v.,  i.,  478. 
v.  Indianapolis,  ii.,  812. 
Low  ».,  ii.,  566. 
Sessions  ».,  i.,  477. 
v.  State,  i.,  395. 
Littlefield,  State  «.,  ii.,  848. 
Littlepage,  Stark  v.,  i.,  421. 
Livingston,  Butler  v.,  ii.,  608. 
Jackson  v.,  i.,  399. 
v.  Keecth,  i.,  259. 
Rees  v.,  i.,  477. 
v.  Rodgers,  i.,  402. 
Summer! in  v.,  ii.,  927. 
Lloyd,  Adams  ».,  i.,  191. 
Burgess  v.,  i.,  499. 
Mich  en  er  v.,  i.,  826. 
v.  State,  i.,  52. 
State  v.,  i.,  52. 
Lockhart  v.  White,  ii.,  603. 
Locks    &  Canals,    Melvin   v.,   ii., 

591. 
Lockwood,  Ballard  v.,  i.,  34. 
Pond  v.,  i.,  401. 
State  v.,   i.,    398,    ii., 
819. 
v.  Thotnm,  i.,  33. 
Loeffuer  v.  State,  i.,  394. 
Loftin,  Davis  v.,  ii.,  639,  684. 
Loggins,  Clemmins  v.,  ii.,  900. 
Logston  v.  State,  i.,  212. 
Lombard,  People  v.,  i.,  395. 
Lone  Star  Co.  v.  West  Point  Co., 
ii.,  844. 


Lonergan,  Farmers'  &c.  Bank  »., 

i.,  398,  ii.,  819. 
Long,  Anderson  v.,  i.  490. 
v.  First,  i.,  304. 
v.  Pellett,  ii.,  844. 
Pursall  v.,  i..  478. 
v.  State,  i.,  391. 
Longfellow,  jMc-Clellan*.,  ii.,  986. 
Longwell  v.  Bentley,  ii.,  922. 
Looker  v.  Davis,   i.,  259. 
Lomig  v.  Sternman,  ii.,  693. 
Long  Island  R.  R.  Co.,  Bedell  c, 

i.,  304. 
Longenberger,  McReynolds  v.,  i.; 

414. 
Loomis  v.  Greene,  i,,  499. 

v.  Wadhams,    i.,  848. 
Lord  v.  Bigelow,  ii ,  926. 
Hill  v.,  ii.,  643. 
Nourry  v.,  i.,  259. 
Plumer  v.,  ii.,  932. 
i\  Staples,  L,  34. 
L»rentz,  Britton  v.,  ii.,  987. 
Loring  v:  Steineman,  i.,  499. 
White  ».,  ii.,  591. 
v.  Whittemore,  i.,  399. 
Losee  v.  Morey,  ii.,  1047. 
Lougher  v.  Kennedy,  i.,  408. 
Loughlin,  Randolph  ».,  i.,  450. 
Louthain,  Carver  v.,  i.,  492. 
Love  *.  Moody,  i.,  52. 
v.  Payton,  i.,  450. 
v.  State,  ii.,  910. 
Lovell,    New  EnGland  Glas3    Co. 

«.,  ii.,  876. 
Low  v.   C.  &  I*.  R.  Ry.  Co.,   ii., 

876. 
Lovett,  Story  v.,  ii.,  1046. 
Low,  Ex  parte,  ii.,  982. 
v.  Little,  ii.,  566. 
Morse  ».,  i.,  259. 
Lowder,   Sullivan  ».,  ii.,  844. 
Lowe  v.  Jolliffe,  i.,  160. 
Lowell  v.  Flint,  i.,  899. 
Lowell  Gas  Light  Co.,  Emerson  «., 
ii.,  874. 


AMERICAN    CASES     CITED. 


1 167 


Lowenstein,  Ex  parte,  i.,  391. 
Lowerre,  Weeks  v.,  i.,  478. 
Lowery,  King  v.,  i.,  308. 
Lowry  v.  Moss,  ii.,  851. 
Loyd,    Union    Canal    Co.   «.,    ii  , 

851. 
Lucas  v.  Baptist  Church,  ii.,  567, 
568. 

v.  Peters,  i.,  34. 

Strother  v.,  i.,   34,  ii.,  622. 
Luckett  v.  Clark,  i.,  400,   ii.,  820. 
Ludd,  Beauchainp  v.,  i.,  410. 
Ludlow  v.  Johnston,  ii.,  825. 

«.  Van  Rensaellaer,  i.,  410. 
Ludlum,  March  v.,  ii.,  986. 
Lund  v.  Tinebro,  ii.,  893. 
Lunday  v.  Thomas,  i.,  420. 
Luning  v.    State,    ii.,     869,    873, 

874. 
Lush  v.  McDaniel,  i.,  479. 
Lyman  v.  Fiske,  ii.,  711. 

v.  Gipson,  ii.,  862. 
Lynch  v.  Commonwealth,  i. ,  392. 

Duffy  v.,  ii.,  1047. 
Governeur  v.,   ii.,    575. 

People   v.,  ii.,  1040,  1041, 
1042. 
Lynde,  Bonesteel  v.,  ii.,  1047. 
Lynes  v.  State,  ii.,  913. 
Lynn,  Salem  v.,  i.,  478. 

United  States  v.,  ii.,  532. 
Lyon,  Andrews  v.,  ii.,  934. 

Barber®.,  i.,  404. 

Hall,  v.,  ii.,  987. 

Hull  v.,  ii.,  988. 

Week®.,  i.,  398,  ii.,  819. 
Lytle,  Barelli  v.,  ii.,  687. 

M.  &  W.  Plank  Road  Co.  Mont- 
gomery City  Couucil  v.,  i.,  409. 

Maberry,  Anderson  v.,  i.,  212. 

MacBride  v.  MacBride,  i.,  198. 

MacClure,  State  ».-,  i..  393. 

MacLaren  v.  Birdsong,  i.,  400. 

Macon,  &c.  It.  R.  Co.  v.  Davis, 
ii.,  851. 


Maoy«.  De  Wolf,  i.,  477. 
Madison,  &c.  R.  R.  Co.  v.  White- 

sel,  i.,  404. 
Magee  v.  Osborne,  i.,  450. 
Magowan,  Strode  v.,  ii.,  626. 
Maguire,  Martin  ».,  i.,  451. 
Mahaney,  People  ».,  i.,  412. 
Maher  v.  Chicago,  i.,  478. 

v.  People,  i.,  494. 
Mahogany,    Certain   Logs  of,    ii., 

1004. 
Maine  Ins.  Co.,  Joyce  v.,  ii.,  879, 

880. 
Maitlaud,  Dishager®.,  i.,  414. 
Major,  Ly mines  ».,  i.,412. 
Makepeace,  Young  ».,   i.,   304,  ii. 

891. 
Mallory  v.  Travellers'  Ins.  Co.,  ii., 

567,  727. 
Malone  v.  State,  i.,  391. 
Manaum  v.  Webster,  i.,  412. 
Manchester  v.  Manchester,  i.,  279. 
Mandeville  v.  Welch,  ii.,  718. 
Manley  v.  Shaw,  i.,  297. 
Mann  v.  Morewood,  L,  33. 

Preston  v.,  ii.,  932,  933. 
Mansfield.  Rust  v.,  ii.,  900. 
Manson,  Ford  v.,  i.,  398,  ii.,  819. 
Maples  v.  Maples,  ii.,  579. 
March  v.  Commonwealth6,  i.,  411. 

v.  Ludlum,  ii.,  98. 
Marcy  v.  Barms,  i.,  304,  ii.,  874. 
v.  Merchants,  &c,  Ins.  Co., 
i.,  47'.). 
Markham  v.  Boyd,  ii.,  630. 
Marlborough.  Ohapin  v.,  i.,  478. 
Marler,  State  v.,  i.,  392. 
Marony,  Stevenson  v.,  i.,  499. 
Marquardt,  Griffin  ».,  i.,  33. 
Marquand,  Wakeman,  v.  i.,  34. 
Marrow,  Commonwealth©.,!.,  304 
Marsh  v.  Pier,  ii.,  1005. 
Marshall   v.   Columbian    Ins.    Co. 
ii.,  873. 
Crane  v.,  i.,  414. 
Haws  ».,  ii.,  841. 


it  63 


AMERICAN    CASES     CITED. 


Marshall,  p.  Morris,  i.,  400. 
State  v.,  ii.,  987. 
Martin  s.  Anderson,  ii.,  986. 
v,  Angell,  ii.,  933. 
o.  Clark.  L,  419,  420. 
v.  Commonwealth,  ii.,  717. 
«.  Drumn,  ii.,  624. 
Gilchrist  &.,  ii.,  850. 
Gilleland  v.,  ii.,  092. 
Landry  v.,  ii.,  631. 
v.  Lewis,  i.,  420. 
v.  Maguire,  i.,  451. 
V.  Martin,  i.,  409. 
Moseley  v.,  i.,  408. 
©.  Righter,  ii.,  932. 
Russel  v.,  L,  408. 
v.  Simpson,  i.,  477. 
State  ».,  L,  117. 
United  States  v.,  ii.,  539. 
Marvin  v.  Richmond,  ii.,  848. 

Seymours.,  L,  408. 
Maryland,  &c.  R.  R.  Co.,   Downes 

s.,  i.,  258. 
Mason  v.  Alston,  ii.,  927. 

Davenport  v.,  ii.,  551. 
Davis  v.,  ii.,  880. 
Moulton  v.,  i.,  25. 
v.  State,  i.,  395. 
v.  Wash,  i.,  410. 
Massachussctts  Mutual    Life  Ins. 

Co.,  Cooper  s.,  ii.,  727. 
Massey,  McKean  s.,  i.,  258. 
Massic,  Bragg  ».,  i.,  477. 
Massonier   s.   Union  Ins.    Co.,  ii., 

826. 
Masters  v.  Masters,  ii.,  880. 
Mastersons.  LeClairc,  i.,  411. 
Mather,  Tylers.,  ii.,  900. 
Mathew,  Deckers.,  ii.,  703. 
Matthews,  Moorhouse  v.,  ii.,  873. 
Mathildes.  Levy,  i.,  304,492. 
Matteson  v.  Kew  York  Central  R. 

R.  Co.,  i.,  273,  ii.,  890. 
Matthews  r.  Coalter,  i.,  477. 
Decker  oM  i.,  33. 
Estate,  ii.,  987. 


Matthews  v.  Light,  ii.,  932. 
Mattocks  v.  Steams,  ii.,  812. 
Mauley,  Knawing  v.,  i.,  438. 
Maurio,  Webb  v.,  ii.,  878. 
Maury  s.  Talmage,  i.,  490. 
Maverick  s.  Austin,  ii.,  591. 

i).  Eight   Avenue  R.    R, 
Co.,  i.,  278. 
Maxwell,  Eadestf.,  ii.,  393. 

v.  Light,  i.,  899. 

v.  State,  i.,  395. 

State  v.,  i.,  259. 

Tucker  ».,  i.,  428. 
May  s.  Butterworth,  i  ,  305. 
Mayberry,  States.,  i.,  400,  ii.,  819. 
Mayer  v.  Hermann,  ii.,   987. 
May  hew,  Rex  v.,  ii.,  1027. 
Mayo,  Brinsmaid  v.,  ii.,  925. 
Mayor,  Boiling  v.,  ii.,  922. 
Mayor  &c.  of  K  Y.  v.  Exchange 

Fire  Ins.  Co.,  i.,  420. 
Mayson  s.  Beazley,  i..  402. 
McAdams  s.  State,  i.,  394. 
McAfferty  s.  Conover,  ii.,  934. 
McAleer  s.  McMurray,  i.,  499. 
McAllister,  Den  v.,  i.,  403. 

v.  McAllister,   i.,   451, 

ii.,  875. 
McAllister,  State  v.,  i. 
411. 
McArn,  Edgar  v.,  i.,  478. 
McArthur,  Fail  v.,  i.,  478. 
McAfee,  Jarboe  v.,  ii.,  643. 
McAuley,  Barkers.,  i.,  189. 
McCaleb,  Doe  v.,  i.,  812. 
McCall  v.  Sun  Mat.  Ins.  Co.,  57. 
M'Call  p.  Sybert,  i.,  414. 
McCann  v.  People,  i.,  394. 
v.  State,   ii.,  538. 
McCarn,  Nellis  v.,  ii.,  876. 
McCartee  v.  Canal,  ii.,  695. 
McCartney,  Cuyler  s.,  ii.,  862. 
McCarty,  Gould  v.,  ii.,  1050. 

Stannard  v.,  i.,  421. 
McCaskle  v.  Amarine,  i.,  450, 
McCaslaud  v.  Carson,  ii.,  990. 


AMERICAN    CASES    CITED. 


1 1 69 


McCaulay  v.  Earnhart,  i.,  400,  ii.. 

820. 
McCausland,  Patterson  v.,  i.,  408, 

409. 
McCawley,  Bell  *>.,  i.,  401. 
McCesky  v.  Leadbetter,  ii  .  930. 
McClain  v.  Gregg,  ii.,  930. 
McCiaire,  United  States  v.,  i.,  393. 
McClellan  v.  Longfellow,  ii.,   986. 

Richardson,  ii.,  982. 
McClelland  v.  James,  i.,  161,  419. 

v.  West.,  i.,  259. 
McClenahan,  Woodford,  v.,i'\.,  879. 
McClernans,   Kemphill  v.,  ii.,  815. 
McClure  v.  Mut.  Life  Ins.  Co.,  ii., 
.728. 
v.  Pursell,  i.,  499. 
McCorab  v.  Gilkey,  ii.,  930. 
McCord,  State  v.,  i.,  258. 
M'Corcnick  v.  M'Murtie,  i.,  414. 
McCormick  v.  Robb,  ii.,  862. 
McCoy,  Miller  v.,  i.,  420. 

State  v.,  i.,  392. 
McCracken,  Fulton  0.,  ii.,  9S7. 
v.  McCrary,  i.,  399. 
v.  West,  ii.,  876. 
McCrary,  McCracken  v.,  i.,  399. 
McCray  v.  Lepp,  L,  420. 
McCreery  v.  Hood,  i.,  400,  ii.,  820. 
McCune  v.  McMichael,  ii.,  933. 
McCutcheon  v.  Pique,  i.,  212. 
McDaniel,  Coble  ».,ii.,  851. 
Lush  ».,  i.,  479. 
v.    State,    i.,    114,   116, 
394. 
McDermott  v.  Hoffman,  i.,  420. 
McDonald,  Armstrong  v.,  ii.,  840. 
a.  Christie,  ii.,  876. 
Desnoyer  v.,  ii.,  814. 
Felton  v.,  ii.,  532. 
v.  Kirby,  i.,  481. 
McDowell,  Baileys.,  i.,  34. 
v.  Hall,  i.,   396. 
Palter  v.,  i.,  479. 
McElthenon.  Weaver®.,  i.,  408. 
McEwen,  Moulton  v.,  ii.,  878. 
74 


McEwen  v.  Portland,  ii.,  626. 
McFall,  Penn.  r.,  i.,  394. 
McGee  v.  Smith,  ii.,  927. 
McGebee,  Johnson  v.,  i.,  43b. 
McGill  v.  Ash,  ii.,  848. 
McGinnis  ».  State,  i.,  412. 
McGlotldin  v.   State,  ii.,  914,  916. 
McGlue,  United  States  ©.,  i.,  394, 

ii.,  567. 
McGown,    Commonwealth    v.,    ii. 

908. 
McGraw,  Foster  v.,  i.,  420. 

Mead  ».,  i.,  304. 
McGregor  v.  State,  ii.,  539. 
M'Grews  v.  M'Grews,  ii.,  635. 
McGuffie  v.  State,  ii.,  985. 
McGuire,  Kelly  v.,  ii.,  846. 

United  States  v.,  ii.,  869. 
McGuingill,  People  v.,  i.,  258. 
McHenry,  Norell  ».,  i.,  411. 
McHugh  v.  State,  i.,  114. 
Mcintosh,  Van  Wyck  «.,  i.,  451. 
McKean  v.  Massey,  i.,  258. 
McKechme,  Whitlock  v.,  ii.,  566. 
McKee  v.  Nelson,  ii.,  867,  879. 

v.  People,  i.,  478. 

Shoemaker  v.,  i..  278. 

Wright  v.,  i.,  490. 
M'Keen,  Denuison  «.,  ii.,  621. 
McKenky  v.  Gaylord,  ii.,  875. 
McKenzie  v.  Hunt,  ii.,  900. 
v.  State,  i.,  392. 
McKeone  v.  Barnes,  i.,  488. 
McKibben,  Persons  v.,  ii.,  536. 
McKie,  Commonwealth  v.,  i.,  391 
McKinney,  Cummings  v.,  i.,  401. 

i).  O'Connor,  i.,  411. 
McKinsie,  Myers  v.,  ii.,  900. 
McKinstry,  Burton  v.,  ii.,  900. 
McKissaek,  Crawford  v.,  ii.,  986. 
McKnight,  Hayden  v.,  i.,  2">8. 
McLean  v.  Clark,  ii.,  987. 

Irwin  v.,  i.,  410. 
McLellan    v.    Richardson,  ii.,  981. 

982. 
McLemore  v.  Pinkston,  i.,  479. 


1170 


AMERICAN    CASES    CITED. 


McLeod,  Murcheson  ».,  i.,  398. 

People    v.,    i.,     394,    ii., 

687. 
State  o.,  ii.,  982,  984. 
McMahon  v.  Davidson,  ii,  622,  7i8. 
People  ».,  ii.,  907,  909. 
v.  Sprangler,  i.,  421. 
McManus,  Miller®.,  ii.,  559. 
McManigle,   Bellefonte  First  Nat. 

Bank  v.,  ii.,  685. 
McMichael  v.  Banksfcon,  i.,  417. 

McCune  v.,  ii.,  933. 
McMurray,  McAieer  v.,  i.,  499. 
M'Murtie,  M'Cormick  v.,  i.,  414. 
M'Nair  v.  Hunt,  ii.,  591. 
McNair  v.  O'Fallon,  ii.,  926. 
McNamara,  Stevens  v.,  ii.,  693. 
M'Neel,  Allen  c,  i.,  399. 
McNeil,  Hoyt  v.,  i.,  410. 

Hurst  v.,  ii.,  644. 
McNeill  v.  Arnold,  ii.,  841. 

Robinson  v.,  i.,  420. 
McOwen,  Moulton  v..  i.,  304. 
M'Pherson  v.  Rathboue,  i.,  402. 

v.  State,  i.,  116. 
McPheters,  Rogers  ».,  i.,  428. 
McPike,  Commonwealth  v.,  i.,  115, 

394,  479. 
McQuade,  Huse  ».,  i.,  161. 
McQueen  v.  Sandel,  i.,  399. 
Mcllae  v.  Creditors,  ii.,  930. 

v.  Pegnes,  ii.,  815. 
McReynolds   v.     Logenberger,    i., 

414. 
McTavisli  v.  Dunning,  ii.,  988. 
McVairy,  Gilmer  ».,  i.,  259. 
McWiliianis,   Kentucky,    Bank  of, 

v.,  L,  399. 
Meachum,  Moore  v.,  i.,  478. 
M  ad,  Commonwealth  ».,  ii.,  984, 
985. 
v   McGraw,  i.,  304. 
Meakim  v.   Anderson,  ii.,  816. 
Meally  v.  Greenougb,  i.,    400,   ii., 

819. 
Means  v.  De  La  Vergne,  i.,  420. 


Mears®.  Graham,  ii.,  617. 
Mechanics'  Ins.  Co.,  Life  and  Fira 

Ins.  Co.  v.,  i.,  404,  ii.,  705. 
Medtart,  Duvall  ».,  i.,  477. 
Medway    v.    United      States,     i., 

450. 
Meech,  Cogswell  v.,  ii.,  1046. 
Meek,  Graham  v.,  ii.,  930. 
®.  Holton,  ii.,  850. 
®.  Perry,  i.,  477. 
®.  Spencer,  ii.,  812. 
Megee  ®.  Beirne,  ii.,  1004. 
Meelze,  Wadsworthville  School  p., 

ii.,  575. 
Mehan  ».  State,  i.,  393. 
Meldrum  ®.  Clarke,  ii.,  637,  684. 
Mell,  Wetmore  v.,  i.,  477. 
Melton,  State  ».,  l.,  499. 
Melvaine,  People  ®.,  i.,  267. 
Melvin   v.    Locks   &    Canals,    ii, 

591. 
Memoney  ®.  Walker,  ii.,  838. 
Menasha,  Fellows  v.,  i.,  411. 

Potter  ».,  i.,  250. 
Mendicott,  State  v.,  i.,  114. 
Mercer,  Richardson  v.,  i.,  304. 

v.  Wright,   i.,  304. 
Merchants',  &c.  Ins.  Co.,  Marcy®., 

i.,  479. 
Meroney  v.  Meroney,  i.,  259. 
Merriam,  Barber  v.,  i.,  479. 
Merrill  ®.  Dawson,   ii.,  900. 
Farrar  v.,  ii.,  644. 
State  v.,  i.,  393,  394. 
Merritt  v.  Baldwin,  ii.,  635. 

®.  Thompson,  ii.,  695. 
Merriweather  v.  Heman,  ii.,  900. 
Merriwether,  Vaulx  v.,  ii.,  812. 
Merser  v.  Regimailter,  ii.,  880. 
Mortens,  Young®.,  ii.,  821. 
Merwin  ®.  Ward,  i.,  401. 
Mesroon,  Everingham  ».,  ii.,  843, 
Mestier,  Laufeac®.,  i.,  411. 
Metter,  Williams  ».,  i.,  402. 
Meyer  v.  Witter,  i.,  433. 
Michener  v.  Lloyd,  ii..  826 


AMERICAN    CASES    CITED. 


1171 


Michon,  Beatty  v.,  ii.,  643. 
Middlebrook,   Hawley  v.,  ii.,  932. 
Middlebury  Bank  v.   Rutland,   i., 

414,  ii.,  87G. 
Middlesex  Co.,  Swan  0.,  i.,  304. 

Mutual  Insurance  Co., 
i.,  399. 
Middleton,  Sparke  v.,  i.,  291. 
Millecan,  State  v.,  ii.,  984. 
Miles  v.  Miles,  ii.,  923. 
Milgate,  People  «.,  i.,  393. 
Miller,  Atwell  v.,  ii.,  862. 
v.  Avery,  i.,  410. 
Campbell  ».,  i.,  34. 
v.  Evans,  ii.,  621. 
v.  Fraley,  ii.,  579. 
Jewett  v.,  ii.,  934. 
v.  McCoy,  i.,  420. 
e.  McManus,  ii.,  559. 
v.  People,  i.,  33,  ii.,  915. 
Robertson   «.,    i.,   451,  ii., 

876,  878. 
Sharp  v.,  i.,  478. 
v.  State,  i.,  115,  ii.,  907. 
Wells  v.,  ii.,  813. 
Zerbe«.,  i.,  499. 
Milliken  v.  Ham,  i.,  52. 
Millings,  Glover  v.,  ii.,  840. 
Millman  v.  Tucker,  i.,  199. 
Mills  v.  Barnes,  ii.,  827. 
«.  Graves,  ii.,  934. 
Milwaukee,  Stoppelfeldt  v.,  i.,  52. 
Mima  Queen  v.  Hepburn,  ii.,  838. 
Mimms  v.  State,  i.,  395. 
Miner,  Carr  «.,  ii.,  812. 
Mingo,  United  States  v.,  i.,  393, 

394. 
Minnick,  State  «.,  i.,  411. 
Minor  v.  Stone,  i.,  411.* 
Minter  v.  Crommelin,  ii.,  622. 
Mish  v.  Wood,  ii.,  877. 
Mitchell  v.  Bromberger,  ii.,  988. 
Howard  ».,  ii.,  925,  926. 
v.  Jacobs,  i.,  400,  ii.,  820. 
Mockring  v.,  ii.,  699. 
Printup  v.,  i.,  479. 


Mitchell  v.  State,  i.,  393. 

Mitchel  v.  Western,  &c.  R.  R.  Co^ 

ii.,  719. 
Mitchinson  v.  Cross,  i.,  258. 
Mi*chum  v.  State,  i.,  55,  394,  477, 

479. 
Mobile  v.  Jones,  i.,  258. 

&c,  R.  R.  v.  Whitney,  i 
412. 
Mockring  v.  Mitchell,  ii.,  699. 
Moffat  v,  Moffat,  i.,  402. 
Moffett  v.  Bowman,  ii.,  985. 
Moffit  v.  Varden,  ii.,  693. 

v.  Witherspoon,  ii.,  845. 
Mohawk,  Costigan  v.,  i.,  499. 
Molier,  State®.,  ii.,  1028. 
Moline,    &c.    Co.,    Gilbert  v.,    i., 

409. 
Moltz,  Commonwealth  v.,  ii.,  933. 
Monroe,  Goggans  «.,  ii.,  595. 
Monteath,  Exchange  Bunk  v.,  ii., 

1050. 
Montgomery,  Lansing  v.,  ii.,  923. 
City   Council   0.,  M. 
&  W.  Plank  Road 

Co.,  i.,  409. 
v.  Hunt,  i.,  490. 
v.  State,  i.,  114,  116. 
Plank  Road    Co.  v. 
Webb,  ii.,  687. 
Montville,  Rowell  v.,  ii.,  648. 
Moody  v.  Commonwealth,  ii.,  813. 
Love,  v.  i.,  52. 
v.  Rowell,  i  ,  450. 
v.  Savin,  i.,  478. 
Stale  v.,  i.,  114. 
Mooers  v.  Bunker,  ii.,  846. 
Moor's  case,  ii.,  910. 
Moor,  Patten  v.,  ii.,  988. 
Moore  v.  Andrews,  i.,  450. 
Blanchard  ».,  i.,  420. 
Curtis  ».,  i.,  477. 
Day  ».,  ii.,  988. 
v.  DesArts,  ii.,  609. 
Hooper  v.,  i.,  410. 
v.  Jones,  ii.,  842. 


172 


AMERICAN    CASES     CITED. 


Moore  v.  Meachum.  i.,  478. 
Stanberry  ®.,  i.,  52. 
9.  State,   115,  110,  395,  420. 
State  v.,  ii.,  695. 
9.  Wilkins,  ii.,  711. 
Moorehouse  9.  Mathews,  ii.,  873. 

Wood  ».,  ii.,  5G7,  568. 
Moran,  Commonwealth  v.,  i.,  420. 
Mordecai  ®.  Beall,  ii.,  815. 
Morehead  v.  State,  ii.,  911. 
Morehouse,   Byrne  v.,  ii.,  930. 
Moore  wood,  Mann  v.,  i.,  33. 
Morey  c.  Hornan,  i.,  433. 

v.    Safe   Deposit  Company, 

i.,  438. 
Losee-®.,  ii..  1047. 
Morgan  v.  Jones,  i.,  400,  ii.,  819. 
Jones  v.,  ii.,  847. 
v.  People,  i.,  114. 
9.  Purnell,  ii.,  842. 
9.  Sims,  i.,  479. 
v.  State,  i.,  411. 
Templeton  v.,    i.,   411,  ii., 

622. 
9.  Whittaker,  i.,  259. 
Morphy,  State  ».,  i.,   304,  392,  ii., 

890. 
Morrell,  Norman  v.,  ii.,  880. 
Morrill  9.  Foster,  i.,  478. 
Morris,  Buekner  9.,  i.,  401. 

Crane  9.,  ii.,  536,  930. 
v.  Edwards,  i.,  428. 
Goekell  v.,  i.,  399. 
9.  Hazlewood,  L,  478,  490. 
Hoy  ».,  ii.,  986. 
Led  better  v.,  i.,  398. 
Marshall  ».,  i..  400. 
v.  Piatt,  ii.,  729. 
9.  Terrenoire,  i.,  421. 
Morrison  9.  Chapiri,  ii.,  813. 

State  v.,  L,  393,  512. 
9.  Sturges,  ii.,  1050. 
Morrow  v.  Commonwealth,  i.,  398. 
Morse  v.  Crawford,  ii.,  874. 
Hill  9.,  ii. ,  559. 
v.  Low,  i.    259. 


Morseman,  Tappan  v.,  ii.,  982. 
Morton,  Alpine  v.,  ii..,  988. 
9.  White,  ii.,  531. 
Mose  v.  State  i.,  115. 
Moseley  v.  Martin,  i.,  408. 

Rex  v.,  L,  114. 
Mosher,  Daniels  v.,  ii.,  874. 
Mosler,  Commonwealth  9.,  ii.,  908 
Moss,  Lowry  ®.,  ii.,  851. 
9.  Riddle,  i.,  23. 
Yar borough  v.,  i.,  477. 
Mosser  v.  Mossera  ii.,  842. 
Mossman  v.  Forrest,  i.,  408,  409. 
Motley,  State  9.,  ii.,  917. 
Mott,  United  States  ».,  ii.,  907. 
Mongin,  Betal  v.,  ii.,  927. 
Moulton,     Commonwealth    «.,    i., 
478. 
v.  McEwen,  ii.,  878. 
9.  Mason,  L,  259. 
9.  McOwen,  i.,  304. 
Mowry  v.  Chase,  ii.,  875. 
Gates  9.,  ii.,  900. 
Move,  Ormond  ©.,  ii.,  1004. 
Mudgett,  Commonwealth  Bank®., 

i.,  304. 
Mubland,  State  ®.,  ii.,  907. 
Muir  v.  Culy,  ii.,   1047. 
Mulatto  Bob,  Respublica®.,  i.,  395, 

ii.,  778. 
Muldowney  9.  Illinois,  &c,  R.  R. 

Co.,  ii.,  867. 
Mulford,  Cohu  v.,  ii.,  900. 

9.  Muller,  ii.,  987. 
Mullekin  v.  Greer,  ii.,  850. 
Mullen  9.  Pryor,  ii.,  687. 

State  v.,  i.,  395. 
Muller  9.  Hoyt,  i.,  399. 

Mulford  v.,  ii.,  987. 
Mullikin  v.  Boyce,  ii.,  812. 
Mumford  v.  Bowno,  i.,  399. 
Mumm  v.  Owens,  i.,  258. 
Muni  an,  Barton®.,  ii.,  812. 
Munroe,  Duulop  v.,  ii.,  622. 
Murchison  v.  MoLeod,  i.,  398. 
Murphy  v.  Barnett,  ii.,  930. 


A  ME  RICA  N    CA  SES     CITED. 


1173 


Murphy,  Common-wealth  v.,  i.,  220. 
Cronly  v.,  i.,  305. 
Killebrew  v.,  i.,  481. 
v.  Orr,  ii.,  687. 
v.    People,    i..     114.    393, 

394. 
Savage  v.,  ii.,  901. 
Murray  v.  Bethune,  i.,  478. 
v.  Buchanan,  ii.,  812. 
Commonwealth  v.,  i.,  116. 
People  v.,  ii.,  539. 
Murrell  v.  State,  ii.,  539. 
Mutual,  &c.  Ins.  Co.,  McClure  v., 

ii.,  728. 
v.  Terry,  ii., 

727. 
Van    Zandt 
t\,ii.,  727. 
Myers  v.  Beeman,  ii.,  1004. 
Hill  v.,  ii.,  862. 
Kimball  ».,  i.,  420. 
v.  MeKinsie,  ii.,  900. 
People  v.,  i.,  394. 
Pickering  v.,  i.,  400. 
Selden  v.,  i  ,  421. 
v.  State,  i.,  395. 
v.  Toscan,  L,  451. 
Mygatt,  Baker  ».,  i.,  411,  450. 

Nanderkan  •».  Thompson,  i.,  420. 
Narragansett     Bank    v.    Atlantic 

Silk  Co.,  i.,  399. 
Nash  v.  Hall,  i.,  499. 
State  «.,  i.,  115. 
National,  &c.  Bank,  Leppoc  «.,  i., 

420. 
Nave  v.  Baird,  ii.,  988. 
Neaderhouser  v.  State,  i.,  409. 
Neal,    Commonwealth  v.,  ii.,  717, 
718. 
v.  Patten,  ii.,  987. 
Nellis®.  McCarn,  ii.,  876. 
Nelms  v.  State,  i.,  116. 
Nelson,  Allegheny  v.,  i.,   412,  ii. 
851. 
McKee,  v.,  ii.,  867,  879. 


Nelson    v.  People,  ii.,  622. 
v.  Robson,  i.,  421. 
«,  Smith,  i.,  479. 
Stanberry  v.,  i.,  409. 
v.  State,  i.,  114,  115. 
State  v.,  ii.,  907. 
v.  United  States,  ii.,  53ft. 
Nemmo  v.  Davis,  i.,  412. 
Neryda,  La,  ii.,  539. 
Nesbitt  v.  State,  i.,  116,  395. 
Nethercote,  Cookw.,  i.,  295. 
Nettleton,  State  ».,  i.,  439. 
New  and  Lau  R.  R.  Co.,  Clem  v., 

ii.,  617. 
Newcomb,  Richai*dson  «.  i.,  450. 

v.  State,  i.,  395. 
Newell,  Galting  v.,  i.,  421. 
New  England  Glass  Co.  v.  LovelL 

ii.,  876. 
New  Haven  Copper  Co.  v.  Brown, 

i.,  499. 
New  Jersey  Steamboat  Co.,  Tinne? 

v.,  ii.,  878. 
Newman  v.  Jenkius,  ii.,  693. 
New  Orleans  Canal  Co.  v.  Temple- 
ton,  i.,  411. 
Newson  «.  Jackson,  ii.,  531. 
Bufferlon  v.,  ii.,  925. 
v.  Davis,  i.,  404,  ii.,  644. 
Newton  v.  Cocke,  i.,  410. 

Jackson  v.,  i.,  404. 
Rideout  v.,  ii.,  861. 
Newtown  0.  Ricketts,  i.,  471. 
New  York  Bible    &  Prayer  Book 
Soc,  Andrew  v.,  ii.,  628. 
Central R.  R. Co.,  John- 
son v.,  i.,  305. 
Central  R.  R.  Co.,  Mat- 
teson  v.,  i.,   278,    ii., 
890. 
&c.  Mining  Co.,  O'Neil 

v.,  ii.,  687. 
Life  Ins.  Co.,  Clark  »., 

i.,  161,  419. 
Central  R.  R.  Co.,  Filei 


v.,  1.,  476. 


H74 


AMERICAN    CASES     CITED. 


New  York,  Arc.  R.  R.  Co.,  Sloan  v., 
i.,  305. 
&c.  E.  R.  Co.,  Stilwell 
r.,  i.,  479. 
Niantic     Bank     v.      Dennis,    ii., 

932. 
Nichol,  Whiting  «.,  693, 
Nichols,  Dixon  v.,  i.,  408. 

Hosford  v.,  i.,  34,  410. 
Hotchkiss,  ii.,  900. 
v.    Williams,    i.,  428. 
Nicks  v.  Rector,  i.,  433. 
Nieto  v.  Carpenter,  ii.,  044. 
Niminick  v.  Ins.  Co.,  ii.,  727. 
Nixon  v.  Porter,  i.,  414. 
Noble,  Huston  ».,  i.,  420. 

Royal  Insurance  Co.  v.,  i., 

279. 
v.  Withers,  i.,  258. 
Noel,  Horn  v.,  i.,  422. 
Nolen  v.  Gwyn,  i.,  402.- 
Norell  v.  McHenry,  i.,  411. 
Norfolk  Lead    Co.,    Gould  v.,  i., 

428. 
Norman  v.  Morrell,  ii.,  880. 
Norris,  Dodd  v.,  i.,  199. 

State  ».,  ii,  1028. 
North  Bank  v.  Abbott,  i.,  450. 

American  Bank  v.  Embury, 
ii.,  812. 
Coal  Co.  v.  Dyett, 
ii.,  928. 
Hero,  Poquet  v.,  i.,  259. 
Northern       Bank,     &c,     Sinking; 

Fund  Com'rs  v.,  i.,  399. 
Northey,  Pierce  v.,  i.,  451. 
Norton  v.  Abbott,  ii.,  1047,  1018. 
v.  Huxley,    ii.,  1005,  1006, 
1028. 
v.  Key  wood,  i.,  404. 
v.  Sanders,  ii.,  929. 
Simpson  ».,  ii.,  812. 
Wrath  ».,  ii..  539. 
Nourry  v.  Lord,  i.,  259. 
Nowells,  Smith  v.,  ii..  844. 
Noyes,  State  v..  i.,  ;">5. 


Noyes  v.  Ward,  i.,  478. 
Nunnally  v.  White,  ii.,  637. 
Xute  v.  Nute,  ii.,  879. 
Nut  well  v.  Tongue,  ii.,  923. 

Oberle,  Commonwealth®.,  ii.,862 
O'Brien  v.  People,  ii.,  567. 
Ocean  Ins.  Co.  v.  Field,  i.,  410. 
v.  Francis  i.,  83. 
O'Connor  v.  Hartford  Fire  Ins.  Co. 
i.,  189. 
McKinney  v.,  i.,  411. 
State  i:,  i.,  411,  490. 
Woodrow  ».,  i.,  410. 
Odell,  Coburn  ».,  ii.,  718. 
Oelricbsfl.  Artz,  i.,47S. 
O'Fallon,  Graham  v.,  ii.,  988. 
McNair  v.,  ii.,  926. 
Swan  v.,  ii.,  875. 
Offutt,  State  v.,  ii.,  982,  983. 
Ogden,  Brandt  v.,  ii,  648. 
Keel  v.,  ii.,  925. 
v.   Stublefield,  ii.,  841. 
Ogletree  ».  State,  i.,  392. 
Ohio,  Spears,  v.,  ii.,  907. 
Okeson, Brubraker  ».,  ii.,  934. 
Old   Colony  R.   R.  Co.,  v.  Boston, 

ic.  R.  R.  Co.,  ii.  877. 
Oldham,  Emmonds  v.,  ii.,  718. 
Oliver,  State  v.,  i.,  114. 
Olt  ».,Soulard,  i.,  410. 
O'Mara  v.  Commonwealth,  i.,  393, 

394. 
Omeara,  United  States  v.  J.,  477. 
O'Neil  v.  Glover,  ii.,  862. 

v.  New  York,  &c,   Mining 

Co.,  ii.,  687. 
».  Slate,  i.,  391. 
r.  Reynolds,  i.,  258. 
State  c,  i.,  490. 
Oppenheim   v.   Ledwolf,    i.,    499, 

534. 
Orman  v.  Riley,  i.,  820. 
Orme,  Davis®.,  ii.,  842. 
Omiehund   v    Barker,  i.,   70,    176, 
285. 


AMERICAN    CASES     CITED. 


1175 


Orcutt,  Peop^  v.,  ii.,  617. 
Ordway  v.  Haynes,  i.,  805. 
Organ  v.  State,  ii.,  985. 
Orr,  Murphy®.,  ii.,  687. 
Orton  v.  Harvey,  i.,  420. 
Ortwein,     Commonwealth   ».,    i., 

392. 
Or  born  v.  Allen,  ii.,  69?. 
Osborne,  Magee  v.,  i.,  450. 
v.  People,  i.,  395. 
Ostrauder,  State  «.,i.,  391,  ii.,  910. 
Otis  v.  Sill,  ii. ,  933. 
O'Toole,  Giles  ».,  ii.,  877. 
Outlaw  v.  Davis,  ii.,  635. 
v.  Hurdle,  i.,  449. 
Ouzts  v.  Seabrook,  i.,  258. 
Overstreet,  Jones  v.,  i.,  408. 
Owen  v.  Boyle,  i.,  34,  410. 

Wing  v.,  ii.,  596. 
Owens,  Clark  v.,  i.,  33,414. 

Mumni  «.,  i.,  258. 
Oxford,  State  0.,  ii.,  983. 
Pack  v.  Chapman,  i.,  499. 
Packard  v.  Hill,   i.,  34. 

v.  United  States,  ii.,  985. 
Packet  Co.  v.  Sickels,  ii.,  1005. 
Packwood,  Deane  v.,  i.,  293. 
Dunn  v.,  i.,  289. 
Padillia,  People  v.,  ii.,  539. 
Page  v.  Homans,  ii.,  876. 
Hopkins  c,  ii.,  621. 
v.  Parker,  ii.,  838,  876. 
Price  v.,  i.,  409. 
Pagett  v.  Curtis,  i.,  411. 
Pains  v.  Jenkins,  i.,  477. 
Paifrey  0.  Portland,  &c.  R.  R.  Cc  , 

1.,  410. 
Palmer  v.  Aldridge,  i.,  412. 
Dewdney  ».,  i.,  139. 
Donner  a.,   ii.,  984. 
v.  Hicks,  ii.,  648. 
Prather  v.,  ii.,  687. 
Smith  v.,  ii.,  848. 
Palter  v.  MeDowe  1,  i.,  479. 
Papiu  v.  Ryan,  i.,  412. 
Parish,  Allen  c,  ii.,  813. 


Parish,  Claiborne  v.,  ii.,  838. 
v.  Gates,   ii.,  987. 
State  v.,  ii. ,  909. 
Park,  Ellis®.,  i.,  408. 

People  v.,  i.,  221. 
Parke  v.  Bird,  ii.,  812. 
Parker  v.  Carter,   ii.,  986. 

Commonwealth  v.,  i.,  398 
Gage  v.,  i.,  33. 
Hill  v.,  i.,  402. 
Page  v.,  ii.,  838,  876. 
v.  State,  ii.,  838. 
v.  Syracuse,  i.,  428. 
Mills  0.  Jacot,  1.,  33. 
Parkersburg  R.  R.  Co.,  Tome  »., 

ii.,  890. 
Parkerson,  State  ».,ii.,  718. 
Parkhurst,  Jackson  v.,  ii.,  930. 
Parks,  Cunningham  ».,  i.,  478. 
v.  Richardson,   ii.,  595. 
Robertson   ».,    i.,    898,  ii., 
819. 
Parmele,  Beecherv.,  ii.,  850. 
Parmther,      Attorney-General    p., 

i.,  394. 
Parris  v.  Ewbanks,  i.,  4l4,  417. 
Parsons,  Goodnow  v.,  ii.,  848. 
v.  Suydam,  ii.,  1047. 
v.  State,   i.,  267. 
Patch,  Ex  parte,  ii.,  546. 
Paton  v.  v.  WesterveJ  t,  ii.,  1046. 
Pate  1).  People,  ii.,  876. 
Patriotic  Bank  v.  Coote,  ii.,  532. 
Patten  v.    Ferguson,   i.,  478,    ii,, 
893. 
v.  Goldsborough,  i.,  403. 
v.  Moor,  ii.,  96 
Neal  v.,  ii.,  987. 
Patterson,  Cloud,  S.  P.  ».,  ii.,  531. 
Commonwealth     v.,    i., 

188. 
Court  Ian. I  v.,  ii.,  893. 
v.  Doe,  ii.,  531. 
Equitable  Life  Ins.  Co. 

».,  L,  i  17. 
Johnson  v.,  ii.,  847. 


1 176 


AMERICAN    CASES    CITED. 


Patterson    v.    Keystone,   &c.    Co., 
h.,  814. 
1).  Linden,  i.,  8i)8,  ii., 

819. 
v.  McCausland,  i.,  408, 

409. 
i).  People,  i.,  394. 
State   v.,   i.,   116,    117, 
394.  499. 
Patteson,  Land  «.,  i.,  411. 
Paul,  Kelly  «.,  i.,  450. 
Payne  v.  Attbury,  ii.,  929. 
v.  Craft,  ii.,  900. 
Fan-  v.,  ii.,  G87. 
v.  Gray,  i.,  258. 
v.  Tread  well,  L,  409. 
Paynter,  Same  v.,   i.,  189. 
Payson,  Brown  >•.,  ii.,  986. 
Pay  ton,  Love  v.,  i.,450. 
Paz,  DaCosta  v.,  ii.,  627. 
Pea  v.  Pea,  i.,  189. 
Peach,  Duval!  ».,i.,  827. 
Peacock  ».  Albin,  i.,  258. 
Pearce,  Copes  ».,  ii.,  846. 
Pearson,  Att'y-Gen'l  v.,  ii.,  628. 

•aBarrington,  i.,  411. 
Pease,  Hamilton  ».,  i.,52. 

v.  Jenkins,  ii.,  851. 
Peaselee,  Tucker  ».,  i.,  477. 
Peck  ©.  Hibbard,  i.,  310. 
Pecot,  Isabella  v.,  i.,  33,  ii.,  531. 
Pecquet  v.  Pecquet,  i.,  410. 
Pedicaris  v.  Trenton,  &c.  Co.,  i., 

409. 
Pedley  v.  Welesly,  i.,   139. 
Peebles  v.  Case,  ii.,  1029. 
Peel,  Williamson  i\,  i.,  395. 
Pegues,  McRea».,  ii.,  815. 
Pelamourges  r.  Clark,  ii.,  876. 
Pell  v.  Ball,  ii.,  699. 
Pellett,  Long  v.,  ii.,  844. 
Peltier,  R.  v.,  i.,  114. 
Pengrct,  Batch  v.,  i.,  059. 
Penu.  v.  Honeyman,  i.,  393,  394. 
v.  Keffer,  ii.,  982. 
v.  Lewis,  i.,  394. 


Penn.  v.  McFall,i.,  384. 
Pennel  v.  Veyant,  ii.,  929. 
Pennington  v.  Gell,  i.,  499. 
v.  Yell,  ii.,  533. 
Pennsylvania,  Bank  of,  v.  Haider 
man,  i.,  451. 
R.  R.  Co.,  Frazier  «,, 
i.,490. 
Penny  wit,  Bright  v.,  i.,  401. 
People,  Ackley,  «.,  i.,  490. 

v.  Ah  How,  ii.,  908. 

v.  Ah  Ki,  916. 

v.  Ames,  i.,  267. 

v.  Anderson,  i.,  114. 

v.  Arnold,  i.,  393. 

v.  Atkinson,  ii.,  986. 

v.  Backus,  ii.,  985. 

«.  Baker,  ii.,  984. 

Baruett  v.,  i.,114. 

v.  Barry,  i.,  394. 

v.  Bennett,  i.,  391. 

Bergen  «.,  i.,  242. 

v.  Bodine,  i.,  393,  490. 

v.  Boom,  i.,  891. 

Bralich  v.,  i.,  259. 

v.  Brannon,   i.,  391. 

v.  Burns,  ii.,  909. 

Campbell  v.,  L,  395. 

«.  Carnal,  ii.,  984. 

Carter  v.,  5.,  116. 

v.  Chamberiin.  i.,  278. 

Chambers  v.,  i.,  411. 

Chase  ».,  i.,  392. 

v.  Clark,  i.,  394. 

v.  Clingan,  i.,  399. 

v.  Coffman,   i.,  392. 

v.  Cole,  i.,  490. 

v.  Columbia,  ii.,  984. 

v.  De  La  Guerra,  i.,  41a 

Delaniater  v.,  i.,  221. 

Duffy  ».,  ii.,  916. 

v.  Dyckman,  ii.,  1047. 

v.  Eastwood,  ii.,  878. 

Ellis  v.,  i.,  451. 

Ferris  v.,  i.,  392. 

Fisher  v.,  i.,  392. 


A  ME  RICA  N    CA  SES     CITED. 


1171 


People  Fitzgerald  v.,  i,.  52. 
Fowler,  ii.,  907. 
Gale®.,  i.,  394. 
v.  Garburt,  i.,  392. 
Gardiner  v.,  i.,  392. 
Gardner  v.,  i.,  478. 
Gates  v.,  ii.,  909. 
v.  Glenn,  i.,  116. 
v.  Godine,  ii    873. 
v.  Gonzales,   i.,  392. 
v.  Graham,  i.,  478. 
Graham  v.,  ii.,  987. 
v.  Green,  i.,  113. 
v.  Grunzig,  i.,  114. 
v.  Guffrey,  i.,  52. 
Haekett     v.,     i.,     114, 

115. 
v.  Henderson,  i.,  395. 
v.  Hendrickson,  i.,  395. 
Hendrickson  v.,  ii.,  909. 
v.  Hessing,  i.,  499. 
v.  Hewitt,  i..  439. 
Hopps  v.,  i.,  392. 
v.  Hopson,  i.,  395. 
v.  Hoy  Teu,  ii.,  909. 
v.  Hubbard,  ii.,  982,  983. 
v.  Hughes,  ii.,  985. 
e.  Hulbut,  ii.,  983. 
Hurd  v.,  i.,  11G. 
v.  Jim  Ti,  ii.,  910. 
Jumpertz  v.,  i.,  451. 
Kennedy  ».,  i.,  392. 
v.  Kerrains,  ii.,  880. 
v.  Kirby,  i.,  394. 
v.  Knapp,  i.,  116. 
v.  Knickerbocker,  i.,  114. 
La  Beau  v.,  i.,  395. 
Lake  v.,  ii.,  869. 
v.  Larned,  i.,  393. 
©.  Lawrence,  i.,  116. 
v.  Lynch,  ii.,  1040,  1041, 

1042. 
The,  Lindenmuller  v.,  ii., 

627. 
v.  Lindsay,  i.,  392. 
v.  Lombard,  i.,  395. 


People  v.  Mahaney,  i.,  412. 
Maher  v.,  i.,  394. 
v.  March,  i.,  393. 
v.  McCann,  i.,  392. 
McCann  v.,  i.,  394. 
v.  McGunigill,  i.,  258. 
McKee  v.,  i.,  478. 
v.   McLeod,    i.,    393,    394, 

ii.,  687. 
v.  McMahon,  ii.,   907,  909. 
v.  Melvaine,  i.,  267. 
v.  Mercein,  i.,  278. 
v.  Milgate,  i.,  393,  490. 
v.  Miller,  i.,  33. 
Miller  v.,  ii.,  915. 
Morgan  v.,  1.,  114. 
Murphy  v.,    i.,   114,    393. 

394. 
«.  Murray,  ii.,  539. 
v.  Myers,  i.,  394. 
Nelson  v.,  ii.,  622. 
O'Brien  r.,  ii.,  567. 
Osborne  c,  i.,  !  95. 
v.  Orcutt,  ii.,  617. 
v.  Padillia,  ii.,  5;)9. 
•0.  Park,  i.,  221. 
Patterson  ».,  i.,  394. 
Pate  v.,  i..  391,  ii.,  876. 
v.  Perry,  i.,  114. 
v.  Phillips,  ii.,  994. 
v.  Phipps,  ii..  539. 
v.  Pitcher,  i.,  392. 
v.  Rath  burn,  i.,  392. 
Real  v.,   i.,  304. 
v.  Robles,  i.,  395. 
v. Robinson,  i.,  409,  ii.,  915. 
v.  Rogers,  i.,  304,  ii.,  873, 

890. 
v.  Ruggles,  ii.,  627. 
RulorT,  v.,  i.,  55,   Sllj  391. 
v.  Schryver,  i.,  394. 
v.  Scroggins,  i.,  395. 
v.  Shea,  i.,  478. 
v.  Sandl'ord,  i.,  116. 
v.  Seliyver.  i.,  392. 
Scoggin*  (.,  i.,  395. 


1 1/8 


AMERICAN    CASES     CiTED. 


People  v.  Schuler,  i.,  391. 

v.  Simonds,  i.,  478. 

v.  Skeehan,  ii.,  1048. 

v.  Sm  th,  ii  ,  9 15. 

v.  Snyder,  ii.,  568. 

v.  Sosephis,  i.,  490. 

v.  Spooner,  i.,  451,  ii.,  875. 

Starkey  ».,    i.,  115,  116. 

Stephens  ».,  i.,  395. 

Stewart  v.,  i.,  305. 

v.  Stokes,  i.,  394. 

v.  Stonecifer,  i.,  393. 

Stow  «.,  ii.,  812. 

v.  Sullivan,  L,  394. 

Templeton  v.,  i.,  395. 

v.  Thayers,  ii.,  909. 

v.  Thorns,  ii.,  907. 

Vanderwerker  v.,  i.,  409. 

».  Vernon,  i.,  477. 

v.  Videto,  ii.,  536,  539. 

Walter  ».,  i.,  392,  395. 

Ward  «.,ii.,  915. 

v.  Warren,  ii.,  7o0. 

v.  Wentz,  ii.,  907. 

Williams  v.,  ii.,  1046. 

Wilson  ».,  i.,  392. 

e.  Williams,    i.,  477,  478, 
ii.,  893. 

v.  Wilson,  i.,  391. 

v.    Winters,  i.,395. 

v.  Wood,  i.,  395. 

v.  Young,  ii.,  983. 
Pepper  v.  Barnett,  ii.,  878. 
Perkins,  Bond  ».,  i.,  481. 

r.  Concord  R.  R.,  ii.,  861. 
De  Witt  v,  ii.,  987. 
Sheldon  w.,  ii.,  985. 
13.  Stebbins,  ii.,  812. 
v.  Walker,   ii.,    1005. 
Wyman  v.,  ii.,  932. 
Perry,  Week  ».,  i.,  477. 

v.  Randolph,  ii.,  813. 
Perkins  v   Young,  i.,  419. 
Perry,  Buckminister  ».,  i.,  499. 
I'ersons  v.  MeKibben,  ii.,  536. 
Peter  v.  State,   ii.,  912. 


Peterborough  v.  Jaffrey,  ii.,  877. 
Peters,    Knickerbocker   Life   In& 
Co.  v.,  i.,  728. 
Lucas  v.,  i.,  34. 
State  ».,  i.,  393,   394. 
Peterson,  Gardiner  v.,  ii.,  1048. 

Toole  v.,  ii.,  841. 
Petit,  Davis  v.,  i.,  400. 
Pettit,  Bales  ».,'ii.,  744,  745. 

Revill  ».,  i.,  490. 
Petrie  «.  Howe,  i.,  279. 
Peyton,  Hutchinson  v.,  ii.,  532. 
Phelan  v.  Bonhain,  ii.,  847. 

e.  Gardner,  ii.,  1000. 
Phelps,  Gillet  v.,  i.,  477. 

v.  Hartwell,  L,  499,  ii.,  588. 
v.  Hughes,  ii.,  693. 
v.  Riley,  ii.,  988. 
State  v.,  ii.,  916. 
v.  Younger,  ii.,  718. 
Phenix  Ins.  Co.  v.  Taylor,  ii.,  815. 
Philadelphia,  &c.    R.    R.    Co.     v. 
Stimpson,  ii.,  522, 
&     New      Orleans, 
Same  v.,  i.,  410. 
Phillips  v.  Berick,  ii.,  1005. 
v.  Costley,  ii  825. 
v.  Ford,  i.,  499. 
Griunell  v.,  ii.,  984. 
Jackson  v.,  i.,  451. 
v.  Kingrleld,  ii.,  711. 
People  ».,  ii.,  994. 
v.  Scott,  i.,  398. 
State  v.,  i.,  392. 
Wright  v.,  i.,  409. 
Phipps,  People  v.,  ii.,  539. 
Phoenix  v.  Ingraham,  ii.,  900. 

&c.   Ins.  Co.,    Lancen  t., 

i.,  420. 
Rubber  Co.,  Goodyear  «., 
ii.,  1046. 
Phyfe  v.  Wardell,  i.,  420. 
Pickard  v.  Bailey,  ii.,  815. 
v.  Collins,  ii.,  1047. 
Goldsmith  v.,  i.,  490. 
Pickering,  Cuts  v.,  i.,  291. 


AMERICAN    CASES     CITED. 


1179 


Pickering  v.    Myers,    i.,    400,    ii., 

820. 
Pierce  v.  Faunce,  ii.,  900. 
Pier,  Marsh  v.,  ii.,  1005. 
Pierce  ®.  Hakes,  ii.,  901. 
v.  Northey,  i.,  451. 
v.  Tennessee  Bank,  i.,  400, 

402. 
v.   Travellers  Ins.   Co.,    ii., 

I70Q 

Warren  v.,  ii.,  643. 

"Wearse  v.,  ii.,  719. 

Wells  v.,  ii.,  932. 

v.  Wilson,  L,  420. 
Pierre,  Choteau  v.,  i.,  410. 
Pierrepoint  v.  Barnard,  ii.,  934. 
Piersall,  Elliott  ».,  ii.,  846. 
Pierson  v.  State,  i.,  394. 
Pike  v.  Wiggin,  ii.,  847. 
Piles®.  Hughes,  i.,  479. 
Pilkinton  v.  State,  i.,  391. 
Pindar®.  Seaman,  fl.,  1050. 
Pinkston,  McLemore  v.,  i.,  479. 
Pinner  ®.  Pinner,  ii.,  901. 
Pintard,  Watkius  v.,  i.,  398. 
Pipe  ».  Steel,  i.,  261. 
Piper,  Valentine  v.,  ii..  591. 
Pique,  McCutcheon  v.,  i.,  212. 
Pitcher,  People  ».,  i.,  392. 
Pitman  v.  State,  i.,  395. 
Pitt,  Gary  v.,  i.,  469. 
Pitts  ®.  State,  i.,  391,  ii.,  539. 

®.  Temple,  i.,  414. 
Pittsburg,  etc.  R.  R,  Groff  ».,  i., 
815. 
v.  Walter,  ii.,  630. 
Pittsfield  v.  Barnstead,  i.,  499. 
Peace,  Depue  ®.,  i.,  449. 
Plank  Road  Co.,  City  Council,  &c. 

»..  i.,  409. 
Plasket,  Ingram  ».,  ii.,  536. 
Plato  ».  Kelly,  ii.,  1047. 
Piatt,  Cantey  v.,  i.,  438. 

Morris  v.,  ii.,  729. 
Plumer  v.  French,   i.,  477. 

®.  Lord,  ii.,  932. 


Plunkett,  Boman  v.,  i.,  451. 
Smith  v.,  i.,  490. 
Plymouth,  Davis  v.,  i.,  189. 
Pocklington,  United  States  ®.,  ii.f 

907. 
Poe  ®.  Dorah,  ii.,  815. 
Poiner,  Buswell  v.,  i.,  428. 
Polk  v.  State,  i.,  392. 
Poll®.  State,  i.,  114,  115,  116. 
Pollard,     Commonwealth    ®.,    ii., 

1028. 
Pollock,  Johnson  v.,  i.,  161,  419. 
Pomeroy,  Abrams®.,  ii.,  637,  638, 

684. 
Pond  v.  Lockwood,  i.,  401. 
Poole,  Strickland  v..  ii.,  846. 
Whitesides  v.,  i.,  410. 
Pope®.  Askew,  i.,  438. 
Blevins  v.,  ii.,  842. 
Bury,  v.,  ii  ,  649. 
Commonwealth,    v.,    i.,  391, 
r  o  9 

®.  Dodson,  i.,  492. 
Tub  v.,  i.,  52. 
Poquet  v.  North  Hero,  i.,  259. 
Poquonnoc   Mfg.    Co.,  Porter,  »,, 

ii.,  879. 
Porgnaid  v.  Smith,  ii.,  812. 
Porter,  Boatright,  ®.,  i.,  490. 
®.  Judson,  i.,  399. 
®.  Marsh,  L,  278. 
Nixon  «.,  i.,  414. 
®.    Poquonnoc     Mfg.    Co. 

ii.,   879. 
v.  Seiler,  i.,  490. 
State,  ®.  i.,    115,   391,  392 

394,  ii.,  890,  1028. 
®.  Wilson,  ii.,   816. 
Portland,  Hale  v.,  ii.,  643. 

McEwen  v.,  ii.,  626. 
Portland,  &c.  R.  R.  Co.,  Paltrey, 

v.,  i.,  410. 
Portsmouth,  &c.  R.  R.    Co.,  Ellis 

v.,  ii.,  719. 
Posten  r.  Rassette,  i.,  401. 
Posterns  ®.  Posterns,  i.,  477. 


u8o 


A  ME  RICA  N    CA  SES    CITED. 


Postlewait,  State  v.,i.,  411. 
Potier  ».  Barclay,  i.,  398,  ii.,  819. 
Potter  v.  Menasha,  i.,  250. 

State  v.,  i.,  2G7,  ii.,   910. 
v.  Webb,  i.,  490. 
Potts  v.  State,i.,  311. 
Powell,  Hart  ».,  i.,  479. 
Power,  Hastings  v.,  i.,  402. 
Powell,  Johnson  v.,  ii.,  814. 

«.  State,  i.,  395. 
Powers,  Hill  v.,  ii.,  848. 

v.   Russell,  i.,  499. 
r.  State,  i.,  305. 
State  v.,  L,  409. 
Pratber,  Allen  v.,  i.,  490. 

v.  Palmer,  ii.,  687. 
Pratt  v.  Andrews,  i.,  490. 
Boyers  v.,  ii,.  G10. 
Breed  ».,  ii.,  089. 
Centee  ».,  i.,  411. 
Clark  o.,  i.,  412. 
Cundell  v.,  i.,  199. 
v.  Lam  son,  i.,  499. 
Prescott  v.  Hayes,  ii.,  841. 

Washington   Bank  v.,  i., 
450. 
Presley,    Fralick    «.,    i.,    402,   ii., 

850. 
Preston.  Gates?'.,  ii.,  1000. 

y.  Mann,  ii.,  932,  933. 
Price  v.  Branch  Bank,  ii.,  900. 

Gordon  v.,    L.  438,  ii.,  875. 
v.  Pane,  i.,  409. 
®.  State,  i.,   394. 
Pridgeu  v.  State,  i.,  395. 
Prieger  v.    Exchange,     &c,    Ins. 

Co.,  i.,  409. 
Priest,  Bruce  v.,  i.,  490. 
Primar,  Lajoye  v.,  ii.,  929. 
Prime,  Hewitt  ».,   ii.,  988. 
Primm  u.  .  fc,   ii.,   G93. 

Printup  v.  Mitchell,  i.,  479. 
Prior  r.  Coulter,  ii.,  718. 
Pritehett  v.  State,  L,  395. 
Protection  Ins.  Co    \r.  Harmer,  ii., 
873. 


Protection  Ins.  Co.,  Walker  v.  ii., 

887. 
Proutz  v.  Eaton,  ii.,  987. 
Pryor,  Mullen  v.,  ii.,  G87. 
Pucket  v.  State,  ii.,  695. 
Puckman  v.  Ransom,  i.,  420. 
Pngh  v.  State,  i.,  411. 
Pumphreys,  United  States  ©.,  ii., 

907. 
Purnell,  Morgan  «.,  ii.,  842. 
Pursell  v.  Long,  i.,  478. 

McClure  v.,  i.,  499. 
Pusey  v.  Wright,  i.,  499. 
Putman  v.  Lewis,  i.,  428. 
Putnam,  Ritchie  v.,  ii.,  566. 
Putney,  Danville  v.,  ii.,  710. 

Quimby,  Greely  «?.,  ii.,  531. 
Quarles,  Robinson  v.,  ii.,  624. 
Quirk  v.  Thomas,  ii.,  932. 

Rachal  v.  Rachal,  i.,  421,  ii,  531. 
Radenius,  Bauerman  v.,  i.,  160. 
Radloff,  Attorney  General,  The,  v., 

v.,  i.,  28G. 
Raglan  v.,  Wynn,  i.,  411. 
Rainey,  Lenoir  v.,  ii.,  579. 
Ramsey,  Drake  v.,  ii.,  815. 
Randal],      Commonwealth  ».,     ii , 

I  Oil. 

Randolph  v.  Easton,  ii.,  687. 
v.  Loughlin,  i.,  450. 
Perry  v.,  i.,  813. 
Rangeley  v.  Spring,  ii.,  932. 
Rankin,  Smith  v.,  i.,  414. 
Ransom,    Jackson  ex.  dem  Swain, 
».,  ii.,  879. 
Puckman  v.,  i.,  420. 
Rape  v.  Heaton,  i.,  410. 
Rash,  State  v.,  i.,   394,  395. 
Rassette,  Posten  v.,i.,  401. 
Rathbone,  M'Pherson  v.,  i,  402. 
Rathbun,  Harris  v.,  i.,  161,419. 

v.  Ingersoll,  i.,  57, 
Rathburn,  People  v.,  i.,  392  . 
Ravenburg    v.      Raveuburg,     ii. 
104G. 


AMERICAN     CASES     CITED. 


1181 


Raw  ley  9.,  Doe,  i..  399. 
Ray  v.  State,  ii.,  985. 
Raymond,  State  v.,  i.,  395. 
Read  v.  Commonwealth,   ii.,  984 
Reading,  Ex  parte,  i.,  199. 

R.  R.,  Co.  i).  Johnson,  i., 
399. 
Beal  v.  People,  i.,  304. 
Reaume  9.  Chambers,  i.,  414. 
Rector,  Nicks  v.,  i.,  433, 
9.  Rector,  i.,  404. 
Reddick,  State  v.,  ii.,  891. 
Reddington  0.  Gilrnan,  i.,  404. 
Redman  9.  Bellamy,  ii.,  929. 
v.  Roberts,  ii.,  851. 
Redmond  9.  Anderson,  ii.,  635. 
Reed,  Higgins®.,  i  ,  402. 
9.  Ilobbs,  ii.,  867. 
9.  Pratt,  ii.,  926. 
v.  Reed,  ii.,  901. 
Same  «.,  i.,  189. 
Smith  9.,  i.,  399. 
Rees  v.  Livingston,  i.,  477. 
Reeves  9.  Dougherty,  ii.,  624. 

Henderson  v..  ii.,  928. 
Reginnilter,  Merser  ».,  ii.,  880. 
Reiar,  Cleavinger  v.,  ii.,  639. 
Reich  crt     v.      Buckingham,      i., 

258. 
Reid  9.  Colock,  i.,  404. 
9.  Reid,  ii.,  845. 
Ross  v.,  ii.,  622. 
9.  State,  i.,  450. 
United    States    ».,    ii.,    985. 
Reidel,  State  ».,  i.,  242. 
Reinhardt  v.  Evans,  i.,  259. 
Reinhart,  Wabash,  &c.  Canal   v., 

ii.,  827. 
Reinicker,  Chirac  9.,  ii.,  986. 
Renner  9.  Bank  of   Columbia,   i.. 

401. 
Rennie,  Taylor  ».,  i.,  411. 
Renwick  9.  Renwick,  ii.,  900. 
Repp,  Bultes  v.,  i.,  420. 
Republic  Life   Ins.  Co.,  Cbapmun 
«.,  ii.,  720. 


Respublica  9.  Mulatto  Bob,  ii.,  394, 
395,  ii.,  778 
9.  Newell,  ii.,  1028. 
Retallick,  Beates  v.,  i.,  399. 
Reuter,  Schail'er,  v.,  i.,  278. 
Revel  9.  State,  i.,  392. 

Revill  i).  Petti t,  i.,  490. 
Reyburn  9.  Bellotti,  ii.,  875. 
Reymen  9.  Heywood,  ii.,  879. 
Reynolds,  Cooper  v.,  ii.,  1004. 
Kennedy  v.,  ii.,  826. 
O'Niel  ».,i.,  258. 
Rhodes,  Clark  v.,  i.,  450. 

9.   Selin,  i.,  403,  ii.,   986. 
Rice  9.  Davis,  i.,  399. 

Hamilton  i.,  400.  820. 

9.,  9.,  ii., 
9,  Rice,  ii.,  987. 
9.  Shook,  i.,  481. 
Richard,  United  States  9.,  ii.,  909. 
Richards,  Clark  ».,  ii.,  9S8. 
Enders  ».,  ii.,  901. 
9.  Schlegelrnich,  i.,  420. 
Swergait  9.,  ii.,  978. 
Richardson  9.  Beede,  i.,  428. 
Boston  ».,  ii.,  844. 
9.  Chickering,  ii.,  932. 
Fifield®.,  i.,  478. 
Griffin  9.,  ii.,  923. 
McLellan«.,ii.,981,982. 
9.  Mercer,  i.,  304. 
9.  Newcomb,  i.,  450. 
9.  Parks  ».,  ii.,  595. 
9.  Williams,  i.,  409. 
9.  Willis,  ii.,  832. 
Richie  9.  Putnam,  ii.,  566. 
Richmond  v.  Aiken,  i.,  499. 
Bell  v.,  ii.,  1047. 
Marvin®.,  ii.,  848. 
Ricker  v.  Hooker,  ii.,  1005. 
Ricketts,  Jones  9.,  ii.,  617. 

Newtown  ».,  i.,  471. 
Ricks,  Floyd  v.,  i.,  408. 
Riddle,  Cheatham  v.,  ii.,  811. 
Hays  v.,  i.,  401. 
Moss  v.,  i.,  33. 


fl32 


AMERICAN    CASES    CITED. 


Saxon  v.  Whitaker,.  ii.,  689. 
Sayre,  Latimer  v.,  i.,  '-'oS. 
Scales  v.  Desha,  ii.,  838. 
Scammon  v.  Scammon,  i.,  402. 
Schaffer  v.  Reutex*,  i.,  27S. 
Schank,  Wainbourgh  v.,  ii  ,  693. 
Schenck,  Atwater  ©.,  i.,  409. 
Scherinerhorn  v.  Talman,  ii.,  632. 
Schlegelmich,  Richards  v.,  i.,  420. 
Schlesinger  v.  Hexter,  i.,  481. 
Schmid  v.  Kreismer,  i.,  208. 
Schmidt,  Godfrey  v.,  ii.,  693. 
Schoeffer  v.  State,  ii.,  910. 
Schoenwakl,  State  «.,  i.,  391. 
School  Trustees,  Holbrook  v.,  ii., 

812. 
Schoonmaker  ©.  Roosa,  ii.,  718. 
Schryvcr,  People  v.,  i.,  392,  394. 
Schuhman  v.  Garratt,  ii.,  922. 
Bchusler©.  State,  ii.,  537. 
Schuylkill  v.  Copelay,  i.,  220. 
Scoggins  v.  People,  i.,  395. 
Scott  v.  Baker,  i.,  403. 
Burton  «.,  ii.,  508. 
r.  Coxe,  ii.,  088. 
Douglas  ».,  ii.,  930. 
Latnpley  ©.,  i.,  479. 
Phillips  ».,  i.,  398. 
"Warner  ©.,  i.,  478. 
Wilkinson  «.,  i.,  428. 
Falsom  ».,  ii.,  816. 
v.  Jackson,  i.,  411. 
Jones  ».,  i.,  814. 
©.  Scott,   i.,  411. 
Scroggins,  People  v.,  i.,  395. 
Scruggs,  Dillard  ».,  i.,  479. 
Seaborn  v.  State,  i.,  394. 
Seabrook  v.  Brady,  i.,  189. 
Ousty  a.,   i.,  248. 
Searcy  v.  Fearn,  i.,  490. 
Searle.  Stanger©.,i.,  405,  467,  468. 
Spates,  State  v.,  i.,  311. 
Sedgwick  ©.  Waterman,  i.,  404. 
Seeger.  Cabarga  v.,  i.,  450. 
Seeley,  Baker  ©.,  it..  932. 
Soibrighr  p.  State,  i.,  723. 


Seiler,  Porter  ».,  i.,  490. 
Seitz,  Vassaultw.,  i.,  412. 
Selby  v.  Frielander,  i.,  420. 
Selden  v.  Myers,  i.,  421. 
Selin,  Rhodes©.,  i.,  403,  ii.,  986. 
Sellers  ©.  Carpenter,  ii.,  812. 
Selser,  Ferriday  v.,  ii.,  900. 
Senior©.  State,  ii.,  914. 
Sessions  ©.  Little,  i.,  477. 
Seward  ©.  Leggatt,  i.,  504. 
Seymour  v.  Marvin,  i.,  408. 

©.  Wilson  i.,  33. 
Shackleford,  Rust  v.,  i.,  258. 
Shaler,  Rogers  ».,  i.,  451. 
Shank©.  Butsch,  i.,  451. 
Shanks  ©.  Lancaster,  i.,  414. 
Sharp,  Farnsworth  ».,  i.,  398,    ii^ 
819. 
Gardner  ».,  ii.,  930. 
©.  Johnson,  ii.,  603. 
©.  Miller,  i.,  478. 
©.  Wycliffe,  ii.,  900. 
Shaw  v.  Beebe,  ii.,  933, 

©.  Charlestown,  ii.,  877. 
©.  Gardner,  ii.,  719. 
Manley  v.,  i.,  297. 
©.  Shaw,  i.,  428. 
Shea,  People  v.,  i.,  478. 
Shearer©.  The  State,  i.,  512. 
Shearman,  Jackson  ©.,  i.,  403,  404. 
Sheffert,  Knouse©.,  i.,  478. 
Shehee,  Gouldin  ».,ii.,  609. 
Shelburne     Falls,     &c.     Bank    v. 

Townsley,  ii.,   685. 
Shelbyville  v.  Shelbyville,  ii.,  631. 
Shelden,  Greenough  ©.,  i.,  399. 
Sheldon  ©.  Benhani,  ii.,  880. 
©.  Clark,   i.,  393. 
©.  Perkins,  ii.,  985. 
©.  Wood,  i.,  399. 
Shelledy,  State  ».,  i.,  478. 
Shelton  v.  Alcox,  ii.,  926. 
v.  State,   ii.,  890. 
State  v.,  i.,  114,  115. 
Shepherd,  Hildreth  ©.,  i ,  259. 
Shepheard  v.  Frys,  i.,  450. 


AMERICAN    CASES     CITED. 


1183 


Root.  Jackson  v..  ii.,  812. 
Kose  v.  Lewis,  i..  400. 
Rosenback.  Hinneman  v.,  i.,  428. 
Rosenbauni  v.  State,  i.,  490. 
Eoss  v.  CI  ore,  ii.,  693. 
v.  Reid,  ii.,  622. 
Roudebusli,    United  States  v.,   i., 

490. 
Rousmainer,  Hunt  «.,  i.,  421. 
Routh   v.   Agricultural   Bank,    i., 

400. 
Rowan  v.  Lamb,  ii.,  631. 
Rowed  v.  Montville,  ii.,  648. 

Moody  v.,  i.,  450. 
Rowt  v.  Kile,  i..  4B8. 
Roxbury  v.  Huston,  ii.,  575. 
Royal  Insurance  Co.  v.   Noble,  i., 

279. 
Royalton    v.    Turnpike    Co.,    ii., 

812. 
Royston  v.  Wear,  ii.,  930. 
R.  R.  Co.,  Canal  Co.  ».,  i.,  411. 
Ruchinan,  Wheeler  v.,  ii.,  927. 
Kudsdill   v.    Slingerlaud,  i.,    304, 

492, 
Ruggles  v.  Bucknor,  ii.,  622. 

People  ».,  ii.,  627. 
Ruloff  v.  People,  i.,  55,  311,  391. 
Rundel  v.  Yates,  ii.,  987. 
Runyan,  Taylor®.,  i.,  410. 
Rush,  Clark  v.,  i.,  477. 

v.  Whitney,  ii.,  811. 
Rusk  v.  Sowerwine,  i.,  398. 
Russell  v.  Branahan,  i.,  411. 

v.  Frisbie,  i.,  477. 
Russel    v.  ^Iurtin,  i.,   408. 

Sinoot  v.,   i.,  34. 
Rust  v.  Mansfield,  ii.,  900. 

v.  Siiackleford,  i.,  258. 
Russell  v.  Beebe,  ii.,  622. 

v.  Stocking,  ii.,  841. 
Rutland,  Middlebury  Bank  v.,  i., 
414,  ii.,  876. 
Ac,  R.  R.  Co.  v.  Thrall, 
ii.,  811. 
Ruth  v.  Ford,  i,,  189. 


Rutterford  v.  Commonwealth,  ii., 

907. 
Ryan,  Papin  ».,  i.,  412. 
Ryder*.  Hathaway,  ii.,591. 
Rycrss  v.  Farwell,  ii.,  934. 

Sacket,  Commonwealth  v.,  i.,  490. 
Saddler  x.  Anderson,  ii.,  622. 
Safe  Deposit  Company,  Morey  ©., 

i.,  438. 
Saiusbury,  Smith  «.,  i.,  467. 
Salem  v.  Lynn,  i.,  478. 

Bank   v.    Gloucester  Bank, 
i.,  450. 
Saleyer,  State  v.,  ii.,  907. 
Sally  v.  Geinter,  i.,  399. 
Salmons  v.  Davis,  i.,  478. 
Salsler,  James  v.,  i.,  414. 
Same  v.  Paynter,  i.,  189. 

v.    Philadelphia    and    New 

Orleans,  i.,  410. 
v.  Reed,  i.,  189. 
Samson  ».  Yardley,  i.,  161. 
Samuel,  Dinkiu-    •.,  ii.,  626. 
Sandel,  McQueen  v.,  i.,  399. 
Sanders,  Ash  bury  ».,  ii.,  692. 
Caulneld  v.,  ii.,  813. 
Norton  v.,  ii.,  929. 
Sanford  v.  Handy,  i.,  421. 
V.  Howard,  i.,  477. 
People  v.,  i.,  116. 
Sarah  v.  State,  ii.,  910. 
Sargeant,  Blany  v.,  i.,  499. 
Sasscer  v.  Farmers'  Bank,  i.,  408 

v.  Herring,  ii.,  900. 
Satterlee  v.  Bliss,   ii.,  986. 
Satterwhite  v.  Hicks,  ii.,  S01. 

v.   State,  i.,  393. 
Saunders  v.  Fuller,  ii.,  816. 
Ward  ».,  ii.,  900. 
ige,  Chase  v.,  ii.,  827. 

Kellar  v.,  i.,400,  ii.,  819 
r.  Murphy,  ii.,  901. 
Savin,  Moody  v.,  i..  178. 
Sawyer  v.  Hannibal,  ii.,  985. 
v.  Hove,  ii.,  925. 


n84 


AMERICAN    CASES     CITED. 


Rideout  e.  Newton,  ii.,  861. 

Blood  v.,  i.,  478. 
Ridgelyc.  Bond,  ii.,  929. 

v.  Johnson,  i.,  414. 
Riggfl.  Cook,  i.,  477. 
Riggin  v.  Collier,  i.,  409. 
Riggins,  Cross  v.,  ii.,  987. 
Rises  v.  State,  i.,  393. 

Tayloew.,  ii.,  531. 
Righter,  Martin  ».,  ii.,  932. 
Riley  v.  Butler,  i.,  304. 

v.  Johnston,  ii.,  986. 
Orman  ».,  ii.,  820. 
Phelps  v.,  ii.,  988. 
Ring  v.  Gray,  ii.,  900. 
Ringgold,  Je fiord  v.  i.,  402. 
Ripple  v.  Ripple,  i.,  410. 
Ripley  v.  Babcock,  ii.,  689. 
Rippy  v.  Cant,  ii.,  567. 
Ritchie,  Kilburn  v.,  ii.,  862. 
Ritter,  Rogers  v.,  i.,  304,  ii.,  876. 

Thoule  ».,  i.,  259. 
Roach,  Allesbrook  v.,  i.,  465,  467, 

4G8. 
Roane,  State  v.,  ii.,  732. 
Robb,  McCormick  ».,  ii.,  862. 
Robbins  v.  State,  i.,  115. 
Roberts,  State  v.,  ii.,  912. 
Roberts'  Will,  In  Re,  ii.,  875. 
Roberts  v.  Allatt,  i.,  199. 
v.  Gee,  ii.,  1046. 
v.  Guernsey,  ii.,  624. 
Redman  ».,  ii.,  851. 
Robertson,  Davis  v.,  ii.,  531. 
v.  Evans,  i.,  419. 
v.   Miller,    i.,   451,   ii., 

876,  878. 
v.  Parks,   i.,    398,    ii., 

819. 
v.  Smith,  i.,  478. 
v.  Stark,   ii.,   873,  877. 
Robeson.  Blount  ».,  ii.,  934. 
Robinett,  Hart  ».,  i.,  400,  ii.,  819. 
Robinson  v.  Chadwick,  i.,  189. 
Cha-tain  v.,  ii.,  862. 
v.  Gilm  ui,  i.,  414. 


Robinson,  Hatton  v.,  ii.,  988. 
Jarvis  v.,  i.,  411. 
v.  Johnson,  i.,  451. 
v.  Lane,  i.,  477. 
v.  McNiell,  i.,  420. 
People   «.,    i.   409,    ii. 

913. 
v.  Quarles,  ii.,  624. 
Taylor  «.,  ii.,  900. 
Robles,  People  v.,  i.,  395. 
Robson,  Nelson  v.,  i.,  421. 
Rochester  v.  Chester,  ii..  877. 

&c.  R.  R.  Co.  v.  Bud- 
long,  ii.,  867. 
&c.  Bank   v.   Suydam, 
ii.,  988. 
Rodman  w.-HoOps,  ii.,  620. 
Roe,  Doe  v.,  i.,  414. 
Rogers  v.  Broadnax,  i.,  478. 

Commonwealth  «.,  i.,  392. 
v.  Dare,  ii.,  986. 
Glenn  ».,  ii.,  812. 
v.  GrifBn,  ii.,  987. 
v.  Higgins,  ii.,  1000. 
Imlay  v.,  ii.,  984. 
Livingston  v.,  i.,  402. 
v.  McPheters,  i.,  428. 
People  v.,   i.,    304,  ii.,  873, 

890. 
v.  Ritter,  i.,  304,  ii.,  876. 
v.  Shaler,  i.,  451. 
v.  Shortis,  ii.,  593. 
Simpkins  a.,  ii.,  900. 
"Watrousfl.,  ii.,  609. 
Whitehurst  ».,  ii.,  1003. 
Rolls  v.  State,  i.,  303. 
Romerlze    v.     East    River,     &c, 

Bank,  i.,  304. 
Ronalds,  Fisher©.,  i.,  190,  193. 
Roosa,  Schoonmakcr  ».,  ii.,  718. 
Root,  Anderson  v.,  i.,  403. 
Hartwell  v.,  ii.,  567. 
Roper,  Hart  v.,  ii.,  608. 

Spencer  ».,  ii.,  695. 
Rose,  Gutliffa.,  ii.,  600. 
v.  Lewis,  ii.,  819. 


AMERICAN    CASES    CITED. 


118s 


Shepherd  v.  Giddings,  i.,  400,  ii., 

840. 
Sherman,  Ensign  v.,  i.,  33. 

v.  Smith,  ii.,  826. 
Sherwood  v.  Houston,  ii.,  838. 
Shields  v.  Byrd,  ii.,  814. 

v.  Frink,  ii.,  826. 

Inskeep  v.,  ii.,  930. 
Shiels  v.  West,  i.,  499. 
Shindler,  Hager  v.,  ii.,  988. 
Shipp,  Wells  v.,  ii.,  838. 
Shippey,  State  v.,  i.,   393,  394. 
Shirley,  Ferrer?,  Earl  v.,  i.,  467. 

v.  Vail,  i.,  278. 
Shoemaker  v.  McKee,  i.,  278. 
Shook,  Rice  ».,  i.,  481. 
Shore  v.  Wiley,  i.,  450. 
Short  v.  Tinsley,  ii.,  900. 

Walters  v.,  ii.,  637. 
Staple,  case  of,  ii.,  624. 
Shortis,  Rogers  ».,  ii.,  593. 
Shortz  v.  Unangst,  i.,  404. 
Shreve,  Deacon  v.,  ii.,  985,  986. 

v.  Dulany,  i.,  401. 
Shriner,  Cramer  v.,  i.,  478. 
Shropshire  v.  State,  i.,  411. 
Shuck  v.  Vanderventer,  i.,  478. 
Shuler,  People  v.,  i.,  391. 
Shulfz  v.  State,  i.,  391. 
Sidney    College,    Legrand    v.,    i., 

412. 
Siebert,  Clayton  ».,  i.,  450. 
Sigman,  Gillma  «.,  i.,  479. 
Sill,  Otis  v.,  ii.,  933. 
Silvia  v.  Ely,  ii.,  848. 
Sim,  Burr  v.,  ii.,  693. 
Simes,  Leavitt  v.,  i.,  398. 
Simion,  State  v.,  ii.,  908. 
Simmons,  Ford  v.,  i.,  499. 

Tillery  v.,  i.,  404. 
Simon  v.  State,  ii.,  910. 
State  v.,  i.,  115. 
Simons  v.  Steele,  ii.,  932. 
Simonda,  People  v.,  i.,  478. 
Simpkins  v.  Rogers,  ii.,  900. 
Simpson  v.  Dall,  ii.,  813. 
75 


Simpson,  Martin  i\,  i.,  477. 
v.  Norton,  ii.,  812. 
Sims,  Morgan  v.,  i.,  479. 

v.  Southern  Express  Co.,  i., 
410. 
Singleton's  Will  Case,  ii.,  568. 
Sinking  Fund  Com'rs  v.  Northern 

Bank,  &c,  i.,  399. 
Sizer  v.  Burt,  i.,  402. 
Skate,  State  v.,  i.,  391. 
Skut,  Fish  v.,  ii.,  579. 
Slater  v.  Wilcox,  i.,  304,  ii.,  867, 

891. 
Slattings  v.  State,  ii.,  844. 
Slaughterford,  Young  v.,  i.,  236. 
Slavers    (Reindeer),  The,  ii.,  539. 
Slayton,  Whitney  v.,  i.,  428. 
Slingerland,    Rudsdile  v.,   i.,  304 

492. 
Slitt  v.  Wilson,  i.,  477. 
Sloan  v.  New  York,  &c.  R.  R.  Co., 
i.,  305. 
State  v.,  i.,  395. 
Slossona.  Hall,  i.,  420. 
Small  v.  Gillman,  i.,  478. 
Smith  et  al.,  ii.,  516. 

Abrams  v.,  ii.,  825. 
Anderson  «.,  ii.,  621. 
Bacon  v.,  ii.,  688. 
Carson  v.,  i.,  410. 
Cavin  v.,  ii.,  900. 
v.  Commonwealth,  i.,  391, 

392,  394. 
Commonwealth   ».,  i.,  395, 

ii.,  778,  982. 
v.  Croom,  ii.,  699. 
v.  Dallas,  i.,  420. 
Erickson    v.,    i.,    304,  ii.; 

890. 
v.  Fenner,  i.,  450. 
French  v.,  ii.,  985. 
v.  Gagcrty,  ii.,  873. 
Gould  ».,  ii.,  838. 
Griggs  ».,  ii..  923. 
Harvey  v.,  ii.,  539. 
Hemingway  v.,  ii.,  987. 


n86 


AMERICAN     CASES     CITED. 


Smith    v.  Hill,  ii.,  622. 

Hoffman  v.,  ii.,  088. 

Hump  ».,  ii.,  710. 

i).  Jeffries,  i.,  303. 

v.  Joyce,  ii.,  567. 

v.  Knowlton,  ii.,  603. 

v.  Kobbe,  i.,  304,  ii.,  878. 

Leonard  v.,  i.,  420. 

McGee  v.,  ii.,  027. 

Nelson  v.,  i.,  470. 

c.  Nowells.  ii.,   844. 

v.  Palmer,  ii.,  848. 

People  v.,  ii.,  015. 

v.  Plunkett,  i.,  400. 

Porgnaid  v.,  i.,  812. 

v.  Rankin,  i.,  414. 

v.  Reed,  i.,  300. 

Robertson  ».,  i.,  478. 

e.  Sainsbury,  i.,  467. 

Sherman  v.,  ii.,  826. 

v.  Smith,  i.,   278,  ii.,   603, 
826. 

p.  State,  i.,  242,  ii.,  015. 

State  v.,  i.,  304,  302,   303, 
304,  ii.,  720. 

United  States  v.,  i.,  52,  207. 

v.  Walton,  ii..  875. 

Wilson  0.,  i.,  34. 
Smither  v.  Flournoy,  i.,  481. 
Smoot  ».  Baldwin,  i.,  34. 

v.  Russel,  i.,  34. 
Snell,  Commonwealth  <».,  ii.,   813. 
Snelling,  Howard  v.,  ii.,  850. 
Snow,  Dillingham  v.,  ii.,  844. 
Snowdon,  State  v.,  i.,  411. 
Snyder,  People  v.,  ii.,  568. 

v.  Western  Union  R.   R. 
Co.,  i.,  304. 
Somerville  v.  Winbish,  i.,  412. 
Soper,  Hum  ».,  ii.,  000. 
Sorg  v.  First  German,  &c,   Con- 
gregation, ii.,  868. 
Sosephis,  Peoples.,  i.,  400. 
Soulard,  Oltfl.,  i.,  410. 
Southern  Express  Co.,Sims?J.,  i., 
410. 


Southern  Carolina  Bk.  p.  Brown, 

ii.,  819. 
Southern  Ins.  &  Life  Co.  v.  Cole, 

i.,  490. 
South  wick  v.    South  wick,  i.,  189, 

278. 
Sowerley,    Allen   v.,    i.,    420,    ii., 

630. 
Sowerwine,  Rusk  v.,  i.,  398. 
Sparke  n.  Middleton,  i.,  291. 
Sparrow  v.  Farrant,  i.,  450,  463. 
Spaulding  v.  Hallenbeck,  ii.,  901. 
v.  Harvey,  i.,  400. 
v.     Susquehanna     Co. 
Bank,  ii.,  815. 
Spaunhorst  v.  Link,  i.,  304. 
Spear,  Dexter  v.,  i.,  304. 
Spears  v.  Ohio,  ii.,  007. 
Speed  v.  Brooks,  ii.,  846. 
Speer  v.  Speer,  ii.,  001. 
Spencer,  Meek  v.,  ii.,  012. 
v.  Roper,  ii.,   605. 
State  v.,  i.,  304,  302,  394. 
Spening  Bishop  v.,  i.,  304. 
Spiller,  Greenwood  «.,ii.,  846. 

Wooward  v.,  i.,  451. 
Spinning,  Bishop  v.,  ii.,  801. 
Spitter,  Commissioners,  Board  of, 

&c.  v.,  i.,  400. 
Spooner,  Davis®.,  ii.,  811,  002. 

People    v.,    i.,    451,  ii., 
875. 
Sprading  v.  Conway,  i.,  180. 
Sprague  v.  Duel,  ii..  680. 
Frith®.,  i.,  410. 
Whitney  v.,  i.,  403. 
Sprangler,  McMahon  «.,  i.,  421. 
Spring  Garden  Mutual  Ins.  Co.  v. 

Evans,  i.,  404. 
Spring,  Rangeley  v.,  ii.,  932. 
Spurr  o.  Taimball,  ii.,  603. 
Squire,  State  v.,  ii.,  083. 
St.  James's  Church,  Doyle  ».,  ii., 

848. 
St.  Jolin  o.  Eastern  R.  R.  Co.,  ii., 
710. 


AMERICAN    CASES    CITED. 


1187 


St.  Lawrence,  &c.  Ins.  Co.,  "West. 

lake  v.,  ii.,  873. 
St.    Louis  Mut.    Life  Ins.  Co.  v. 

Graves,  ii.,  727. 
St.  Mary's  Seminary,  Washington 

Ins.  Co.  v.,  i.,  161,  419. 
Stafford,  White  «.,  i.,  278. 
Stahlnecker,  Emmons  v.,  i.,  391. 
Stanberry  v.  Moore,  i.,  52. 

v.  Nelson,  i.,  409. 
Standifer,  State  v.,  ii.,  730. 
Stanger  v.    Searle,    i.,    4G5,   467, 

468. 
Stanleys.  Stanley,  i.,  189. 

State  v.,  ii.,  609. 
Stanglein  v.  State,  ii.,  915. 
Stannard  v.  McCarty,  i.,  421. 
Stanton  v.  State,  ii.,  984. 
Staples,  Lord  v.,  i.,  34. 
State  «.,  i.,  392. 
Stapleton  v.  King,   i.,  421. 
Stark  v.  Littlepage,  i.,  421. 

Robertson  v.,  ii.,  873,877. 
Starke,  State  0.,  i.,  394.  , 

Starkey«.  People,  i.,  115,  116. 
Starling,  State  v.,  i.,   392. 
Starrs,  Delaware,  &c.  Towboat  Co. 

v.,  ii.,  876. 
State  v.  Aaron,  ii.,  915. 

Aaron  v.,  ii.,  907,  908. 

Adams  v.,  i.,  393. 

Aixen  ».,  ii.,  907. 

v.  Alford,  i.,  395. 

Alfred  v.,  ii.,  909. 

Angel  v.,  i.,  729. 

Anthony  v.,  i.,  114,  115. 

Atkins  v.,  i.,  395. 

Austin  v.,  ii.,  908. 

v.  Ayer,  ii.,  984. 

Baalam  v.,  ii.,  551. 

v.  Bailey,  i.  411. 

«.  Baker,  ii.,  982,  983. 

Barcus  v.,  i.,   394. 

v.  Baron,  i.,  392. 

«.  Bartlett,  i.,  262,  393. 

t>.  Beebe,  ii.,  984. 


State  Beets  v.,  i.,  117. 
Ben  v.,  i.,  115. 
v.  Benham,  ii.,  730. 
Bennett  v.,  i.,  490,  ii.,  984. 
v.  Benton,  ii.,  729. 
v.  Bertrand,  i.,  393,  394. 
Binns  «?.,  i.,  393. 
Bird  v.,  i.,394. 
Bishop  «.,  i.,  451. 
Bivens  v.,  i.,  394. 
v.  Black,  i.,  478. 
Blackburn  v.,  ii.,  738 
Bob  v.,  ii.,  910. 
Bonfante  v.,  i.,  392. 
v.  Bostick,  ii.,  915. 
Bowler  v.,  i.,  391. 
Boyd  v.,  ii.,  914,  983. 
Boullemet  v.,  i.,  408. 
Bradley  v.,  i.,  392,  394. 
Brakefield  v.,  i.,  115,  114. 
v.  Brandon,  i.,  392,  394. 
Breut  v.,  ii.,  610. 
Bretton  v.,  ii.,  729. 
v.  Brewer,  ii.,  983. 
v.  Briggs,  i.,  188,  279. 
v.  Brinyea,  i.,  394. 
v.  Broughton,  ii.,  909,   982. 
v.  Brown,    i.,    392,  394,  ii., 

567. 
Brown  v.  i.,  52,   115,  220. 
Brucker  v.,  i.,  411. 
v.  Brunelto,  i.,  113. 
v.  Branson,  i.,  439. 
v.  Bryant,  i.,  259. 
v.  Bryson,  ii.,  848. 
Cain».,  ii.,  910. 
ColdwelU'.,  ii.,  726. 
Campbell   v.    5.,    115,    116, 

392. 
v.  Carr,   ii.,   914. 
Carrol  0.,  ii.,  908. 
Cash  v.,  i.,  411. 
Check  v.,  i.,  242. 
Chuboon  ».,  ii.,  987. 
v.  Clark,  ii.,  874. 
Clark*.,  i.,  392,  394. 


n88 


AMERICAN    CASES    CITED. 


State  0.  Cleaves,  i.,  82,  258,  260. 
Clem*®.,  i.,  394. 
Cluck  v.,  i.,  395. 
Cocharn  ®.,  ii.,  984 
®.  Coffee,  i.,  393. 
Coffee  ».,  i.,  394. 
0.  Coleman,  ii.,  539. 
Collier  v.,  ii.,  596. 
«.  Collins,  i.,  305,  391,  392. 
Com  an  0.,  i.,  402,  ii.,  820. 
Conley  v.,  ii.,  911. 
Conner  ®.,  i.,  393. 
v.  Cook,  ii.,  914. 
®.  Cooper,  i.,  729. 
Cornelius  0.,  i.,  477. 
0.  Coupenhaver,  ii.,  984. 
0.  Cowan,  ii.,   916. 
0.  Crawford,  i.,  392. 
Crawford  v.,  ii.,  984,  986. 
t.  Cresson,  i.,  490. 
Crilley®.,  i.,  393. 
Crocker  0.,  ii.,  983. 
0.  Crowell,  i.,  393,  512. 
®.  Dalton,  i.,  490. 
Danville,     &c,     Co.   0.,    i., 

410,  411. 
v.  Davidson,  i.,  391,  479. 
Davis  v.,    i.,   52,    392,    392, 

ii.,  717,  890,  891. 
0.  Decklotts,  i.,  393,  394. 
Delaware,    &c.,    Tow   Boat 

Co.  ».,  i.,  304. 
Denton  v.,  i.,  115,  479. 
Dick  v..  ii.,  908. 
®.  Die,  i.,  259. 
0.  Dineen,  i.,  391. 
Dixon,®.,  i.,  11 5, 11 6, 394, 395. 
®.  Dolierty,  ii.,  907. 
Dondlly  ®.,  i.,  115,  116,  391. 
®.  Doon,  ii.,  982,  984. 
Dove®.,  i.,  392,  393,  394. 
Drumright  v.,  i.,  478. 
0.  Duler,ii.,  893. 
«.  Duncan,  i.,  242. 
Dunn  ®.,  i.,  il4,  395 
«.  Dutton,  ii.,  861. 


State   v.  Edwards,  i.,  411.     . 
Egg'er  ®.,  i.,  395. 
Eugleman  v.,  i.,  490. 
Epps  ®.,  i.,  490,  ii.,  985. 
Eskridge  ©.,  ii.,  913. 
Evans  v.,  i.,  395. 
Fanning  v.,  i.,  392. 
®.  Farish,  ii.,  635. 
®.  Farr,  i.,  499. 
Fanell  v.  i.,  393. 
Farrer  v.,  ii.,  984. 
0.  Fassett,  ii.,  982. 
Felix  ».,  i.,  490. 
®.  Felter,  i.,  392. 
Ferdinand  ».,  i.,  409. 
®.  Ferguson  i.,  117. 
®.  Fields,  ii.,  908. 
Findley®.,  ii.,  531,  539. 
®.  Fisher,  ii.,  914. 
®.  Fitzhugh,  i.,  115,  144. 
Hanigan  v.,  i.,  245. 
Floyd  ®.,  i.,  394. 
0.  Ford,  i.,  490. 
0.  Forist,  ii.,  596 
Fouts  v.,  ii.,  911. 
Frederick  0.,.ii.,  909. 
0.  Freeman,  i.,  114,  ii.,  984. 
French  v.,  i.,  391. 
®.  Fulkerson,  ii.,  729. 
Gallalian  0.,  i.,  393. 
Gandolfo  ®.,  i.,  490. 
Garber  v.,  i.,  478. 
Gening  0.,  i.,  393. 
Giles  v.,  i.,  391. 
0.  Givens,    i.,  439,  451,  u., 

877. 
Goodal  0.,  i.,  116. 
®.  Godwin,  ii.,  984. 
Golden®.,  i.,  392. 
0.  Goodrich,  i.,  395. 
0.  Gosset,  ii.,  914. 
0.  Grant,  ii.,  907. 
0.  Green,  i.,  394,  385. 
Green  0.,  i.,   393,  394,  ii.t 

738. 
0.  Greenwell,  ii.,  847. 


AMERICAN    CASES     CITED. 


1 189 


State  v.  Gregor,  i.,  395. 
v.  Gregory,  ii.,  910. 
v.  Guild,  ii.,  912,  916. 
v.  Hall,  i.,  395. 
Halle,  i.,  258,  478. 
Hamby  v.,  i,,  393,  394. 
Hamilton  v.,  i.,  476. 
v.  Hammett,  i.,  411. 
Hanby  v.    i.    392,  395. 
v.  Hanna,  i.,  113. 
v.  Harman,  ii.,  910. 
Harrington  v.,  ii.,  620. 
Harris,  ii.,  732. 
v.  Harris  ».,  i.,  395. 
v.  Hash,  ii.,   914. 
Hawkins,  S.  P.,  v.,  909. 
v.  Hays,  i.,  392,  395. 
v.  Haywood,  i.,  394. 
Hector  v.,  ii.,  916. 
Henderson  v.,    i.,   393,  399, 

499. 
«.  Hildreth,  i.,  394. 
Hiller  v.,  i.,  391. 
v.  Hinchnian,  ii.,  636. 
Hizer  v.,  i.,  411. 
v.  Hobbs,  ii.,  914. 
Holland  v.,  i.,  394. 
Hollers.,  395. 
v.  Holme,  i.,  393,  394. 
Hopper  v.,  i.,  393. 
v.  Howard,  ii.,  913,  984. 
Hoye  v.,  i.,  395. 
v.  Hoyt,  i.,  394. 
Hudson  ».,  i.,  115,  ii.,  984, 

985. 
Hughey  v.,  i.,  395. 
Hummel  v.,  ii.,  616. 
v.  Hundley,  i.,  392. 
v.  Huntley,  i.,  477. 
Ingraham  «.,  i.,  411. 
v.  Irwin,  i.,  394,  ii.,  909. 
Isaacs  v.,  i.,  394. 
v.  Jackson,  i.,  395,  476. 
Ja*nes  ».,  i.,  391. 
«.  Jarrett,  i.,  411. 
Jeff  v.,  i.,  394. 


State,  Jenkinson  v.,  ii.,  986. 
v.  Jerome,  i.,  392. 
Jim  v.,  i.,  395,  778. 
Joe  ».,  ii.,  910. 
v.  Johnson,  i.,  393,  394. 
Johnson    v.,    i.,    115,    116, 

395,  478,  ii.,   984. 
v.  Jones,  i.,   392. 
Jones  v.,  ii.,  717. 
Jordan  v.,  ii.,  907. 
v.  Keeler,  i.,  391. 
v.  Keene,  i.,  395,  476. 
The  Keener  ».,i.,  395,  490. 
Kelly  v.,   i.,  221. 
Kerby  v.,  i.,  477. 
v.  Kietb,  i.,  394. 
1).  Kimborongh,  i.,  403. 
King  v.,  ii.,  908. 
Kmgen  ».,  i.,  393. 
v.  Kingsbury,  i.,  305. 
v.  Kirby,  ii..  907,  914. 
v.  Klinger,  ii.,  869. 
v.  Klingler,  i.,  392. 
v.  Knapp,   i.,  392,  395,  49a 
v.  Knight,  i.,  392,  493,  394- 
v.  Laliyer,  i.,  C93. 
v.  Lamb,  i.,  391,  ii.,  909. 
Lambeth  ».,  i.,  116. 
v.  Langford,  i.,  394. 
Law  v.,  ii.,  539. 
v.  Lawrence,  i.,  262,  392. 
Lee  v.,  i.,  267. 
Leiber  ».,  i.,  115. 
v.  Leonard,  i.,  395. 
Levy  ».,  i.,  410. 
Lewis  ».,  i.,  114. 
Lings  v.,  i.,  395. 
v.  Lipscomb,  i.,  481. 
v.  Litchfield,  i.,  267. 
Little  v.,  i.,  395. 
v.  Littlefield,  ii.,  848. 
v.  Lockwood,  i.,  398,  ii.,  819 
Loeffner,  ».,  i.,  394. 
Logston  v.,  i.,  212. 
Long  v.,  i .,  391. 
Love  v.,  ii.,  910. 


1190 


A  ME  RICA  N    CA  SES     CI  1  ED. 


State,  Luning®.,ii.,  869,  873,  874. 
Lynes  t;.,  ii.,  913. 
v.  MacClure,  i.,  393. 
Malone  v.,  i.,  391. 
e.Marler,  i.,  392. 
v.  Marshall,  ii.,  987. 
».  Martin,  i.,  117. 
Mason  ».,  L,  395. 
v.  Maxwell,  i.,  252 
Maxwell  v.,  i.,  395. 
v.    Mayberry,    i.,    400,    ii., 

819. 
Mc Adams  v.,  i.,  394. 
McCann  v.,  ii.,  538. 
v.  McCord,  i.,  258. 
v.  McCoy,  i.,  392. 
McDaniel  v.,    i.,   114,    116, 

394. 
McGinnis  v.,  i.,  412. 
McGlothliu  »,.  ii.,  914,  916. 
McGregor  ».,  ii.,539. 
McGmffie  v.,  ii.,  985. 
McIIugh  ».,  i.,  114. 
McKenzie  v.,  i.,  392. 
McLeod,  ii.,  982,  984. 
McPherson  v.,  i.,  116. 
Mehan  ».,  i.,  393. 
v.  Melton,  i.,  499. 
t.  Mend'cott,  i.,  114. 
v.  Merrill,  i.,  393,  394. 
v.  Millecan,  ii.,  984. 
Miller©.,  L,  115,  ii.,  907. 
Mimms  v.,  i.,  395. 
v.  Minnick,  i.,  411. 
Mitchell  ?;.,  i.,  393. 
Mitch  urn  v.  i.,  55,  394,  477, 

479. 
Montgomery  v.,  i.,  114,  116. 
v.  Moody,  i.,  114. 
«.  Moore,  ii.,  695. 
Moore  v,  i.,  115,    116,  395, 

420. 
Morehead  v.,  ii.,  911. 
Morgan  v.,  i.,  411. 
•.  Morphy,  i.,  304,  392,  481 

ii.,   890. 


State   ».  Morrison,  i.,  393,  518. 
Mose  v.,  i.%  115. 
v.  Motley,  ii.,  917. 
v.  Muhland,  ii.,  907. 
D.  Mullen,  i.,  395. 
Murrell  v.,  ii.,539. 
Myers  ».,  i.,  395. 
v.  Nash,  i.,  115. 
Neaderhouser  v.,  i.,  409. 
Nelms  «.,  i.,  116. 
Nelson  v.,  i.,  114,,    115,  ii. 

907. 
Nesbitt  v.,  i.,  116,  395. 
v.  Nettleton,  i.,  439. 
Newcomb  v.  i.,  395. 
v.  Noyes,  i.,  305. 
v.  O'Conner,  i.,  411,  490. 
».  Offutt,  ii.,  982,  983. 
Ogletree  v.,  i.,  392. 
v.  Oliver,  i.,  114. 
v.  O'Niel,  i.,  490. 
O'Neil  v.,  i.,  391. 
Organ  v.,  ii.,  985. 
v.    Ostrander,    i.,    381,    ii., 

910. 
v.  Oxford,  ii.,  983. 
v.  Parish,  ii.,  909.  • 
Parker  v.,  ii.,  838. 
v.  Parkerson,  ii.,  718. 
Parsons  v.,  i.,  267. 
v.   Patterson,    i.,    116,   117, 

394,  499,  ii.,  558. 
v.  Peters,  i.,  393,  394. 
Peter  v.,  ii.,  912. 
v.  Phelps,  ii.,  916. 
v.  Phillips,  i.,  392. 
Pierson  v.,  i.,  394. 
Pilkinton  v.,  i.,  891. 
Pipe  v.,  i.,  261. 
Pitman  v.,  i.,  395. 
Pitts  ».,  i.,  391,  ii.,  539. 
v.  Poll,  i.,  114,  115,  116. 
v.  Porter,  i.,  115,  304,  891. 

392.  ii.,  890. 
v.  Postlewait,  i.,  411. 
v.  Potter,  i.,  267,  ii.,  910. 


AMERICAN    CASES    CITED. 


1191 


State,  Potts  c,  i., 311. 
Powell*.,  i.,  395. 
v.  Powers,  i.,  409. 
Powers  c,  i.,   305. 
Price  v.,  i.,  394. 
Pridgen  v.,  i.,  395. 
Pritchett  v.,  i.,  395. 
Puckett  v.,  ii.,  695. 
Pugh  v.,  i.,  411. 
«.  Rash,  i.,  394,  395. 
Ray  v.,  ii.,  985. 
v.  Raymond,  i.,  395. 
v.  Reddick,  ii.,  891. 
Reid  v.,  i.,  450. 
t.  Reidel,  i.,  242. 
Revel*.,  i..   392. 
Riggs  v.,  i.,  393. 
v.  Roane,  ii.,  732. 
Robbins*.,  i.,  115. 
v.  Roberts,  ii.,   912. 
Rolls'*.,  i.,  303. 
Rosenbaum  v.,  i.,  490. 
v.  Saleyer,  ii.,  907. 
Sarah  v.,  ii.,  916. 
Batter-white  v.,  i.,  393. 
*.  Schilling,  i.,  411. 
SchoefFer  *.,  ii.,  910. 
v.  Schoenwald,   i.,  391 
Schusler  *.,  ii.,  537. 
Seaborn  *.,  i.,  394. 
v.  Seates,  i.,  311. 
Seibright  v.,  ii.,  723. 
Senior  *.,  ii.,  914. 
The,  Shearer  v.,  i.,  51&. 
v.  Shelledy,  i.,  478. 
t>.  Shelton,  i.,  114,  115. 
Shelton  v.,  ii.,  890. 
v.  Shippey,  i.,  393,  394. 
Shropshire  v.,  i.,  411. 
Shultz  *.,  i.,  391. 
t>.  Simion,  ii.,  908. 
«.  Simon,   i.,  115. 
Simon  ».,  ii.,  910. 
v.  Skate,  i.,  931. 
Slattings  v.,  ii.,  844. 
v.  Sloane,  i.,  395. 


State   r.  Smith,  i.,  304,   393,  393, 
ii.,  729. 
Smith  *.,  i.,  242,  ii.,  915. 
v.  Snowdon,  i.,  411. 
v.  Spencer,  i.,  304,392,  891 
*.  Squire,  ii.,  983. 
v.  Standifer,  ii.,  730. 
Stanglein  t.,  ii.,  915. 
«.  Stanley,  ii.,  609. 
Stanton  •».,  ii..  984. 
v.  Staples,  i.,  392. 
v.  Starke,  i.,  394. 
c.  Statling,  i.,  392. 
Stein  *.,  i.,  477. 
Stephen  v.,  i.,  408,  ii.,  91. 
Stevens  *.,  i.,  392. 
Stocking  *.,  i.,  391. 
v.  Stokeley,  ii.,  984. 
Stone  v.,  i.,  394. 
«.  Studevant,  i.,  340. 
Sumner  v.,  i.,  391,  ii.,  539. 
v.  Symonds,  ii.,  983. 
Taulman  v..  i.,  189. 
Templeton  *.,  i.,  394. 
p.  Terrell,  i.,  115. 
v.   Thompson,    i.,    361,    ii. 

827,  808. 
Toler  v.,  i.,  392. 
«.  Tootle,  i.,  409. 
Tompkins  ».,  ii.,  847. 
v.  Town,  i.,  393,  391. 
v.  Traylor,  i.,  391. 
Tucker  *.,  i.,  411. 
Turk  *.,  ii.,  983. 
v.  Turner,  i.,  393,  384. 
Tweedy  ».,  i.,  393. 
v.  Twitty,  i.,  34. 
Tyner  *.,  i.,  54,  391,  392. 
t>.  TJpharn,  i.,  393,  490. 
v.  Uzzerdook,  i.,  311. 
*.  Vaigncur,  ii.,  913. 
Van  Buren  v.,  ii.,  916. 
v.  Van  Winkle,  ii.,  539. 
v.  Varncy,  i.,  116. 
e.  Vincent,  i.,  242,391,  398. 
Vincent  v.,  i.,  212. 


1 192 


AMERICAN    CASES     CITED. 


State   r.  Walker,  ii.,  916. 
Walker  v.,  i.,  303. 
v.  Ward,  i.,  438. 
Ward®.,  i.,  116. 

t>.  Wagner,  i.,  115. 

Ware®.,  i.,  189. 

Warner  v.,  i.,  245. 

Warren  v.,  ii.,  916. 

Wasten  v.,  i.,  393. 

v.  Waterman,  i.,  391. 

v.  Waters,  ii.,  842. 

v.  Watkins,i.,  394. 

v.  Wayman,  ii.,  816. 

v.  Webster,  i.,  333. 

v.  Wells,  i.,  490. 

Walsh  v.,  ii.,  946. 

v.  Wentworth,  i.,  395,  ii.,  91. 

West  ».,  i.,  893,  ii.,  602. 

Westmorland  v.,  i.,  52. 

Whaley  ».,  i.,  392,  ii.,  910. 

Wheat  v.,  i.,  393. 

Whitten  v.,  i.,  492. 

v.  Whittier,  ii.,  946. 

Whittier  v.,  i.,  304. 

Wiley  ».,  ii.,  916. 

v.    Williams,    i.,    116,    391, 
411,  ii.,  020. 

v.  Willis,  i.,  394. 

v.  Wilson,  i.,  114,  115,  279. 

Winter  v.,  i.,  391. 

v.  Wiseman,  i.,  52. 

Witt  v.,  i.,  393. 

Wolverton,    S.    P.,   ».,   ii., 
915. 

t>.  Wood,  ii.,  867,  890. 

Woodorder  v.,  L,  115. 

Woodsides  ».,  i.,  393,  395. 

Wroe  v.,  i.,  116. 

v.  Wyatt,  i.,  52. 

v.  York,  ii.,  911. 

v.  Zeller,  i.,  393,^394. 

Bank,  Conway  v.,  ii.,  532. 
v.  Curran,  i.,  411. 
v.  Whitelow,  i.,  450. 
Staup  v.  Commonwealth,  i.,  393. 
taver,  Ferguson  »,  i.,  900. 


Steamboat  Co.,  HalH-.,  i.,  479. 
Steam     Navigation     Cc.  v.    Dan- 

dridge,  i.,  478. 
Steamer   Niagara  v.    Cordes,    ii., 

719. 
Steerns,  Blanchard  v.,  ii.,  711. 
Mattocks  v.,  ii.,  819. 
v.  Wright,  i.,  252. 
Stabbins,  Perkins  ».,  ii.,  842 
Steele,  Ex  parte,  i.,  386. 

Simons  v.,  ii.,  932. 
Stegall  v.  Stegall,  ii.,  842. 
Stein  v.  State,  i.,  477. 
Steinman,  Loring  v.,  i.,  499. 
Stephen  v.  State,  i.,  408,  ii.,  915. 
Stephens,  Indianapolis,  &c.  R.  R 
Co.  v.,  i.,  409. 
v.  People,  i.,  395. 
Stephenson  v.  Bannister,  i.,  410. 
Stern,  Davis  v..  i.,  421. 
Sternberg,  Enders  v.,  i.,  399. 
Sternman,  Lomig  ».,  ii.,  693. 
Stetson  v.  Howland,  i.,  478. 
Steumbaugh  v.  Hallam,  i.,  258. 
Stevens,  Hoyer  ».,  i.,  477. 

v.  McNamara,  ii.,  693. 
v.  State,  i.,  392. 
Stevenson  v.  Marony,  i.,  499. 
Steward  v.  Thomas,  ii.,   900. 
Stewart®.  Butler,  ii.,  930. 

v.  Connor,  i.,450,  ii.,  815 
v.  Hanson,  i.,  477. 
v.  People,  i.,  305. 
Pfimm  v.,  ii.,  693. 
Syme  v.,  i.,  410. 
Stickney,  Bobe  v.,  ii.,  816. 

Forsaith  ».,  ii.,  862. 
Stigers,  Thomas  v.,  i.,  409. 
Stillwell,  Carpenter  v.,  ii.,  933. 
Stilson,  Greeley  v.,  ii.,  877. 
Stilwell  v.  New  York,   &c.   R.  R 

Co.,  i.,  479. 
Stimpson,  Philadelphia,  &c,  R.  R, 

Co.  v.,  ii.,  622. 
Stinchfield  v.  Emerson,  ii.,  693. 
Stivers,  Kan  ».,  i.,  423. 


AMERICAN    CASES     CITED. 


1 193 


Stockbridge  0.  West  Stockbridge, 

i.,  414. 
Btockett,  Watkins  «.,  i.,  420. 
Stockham,  Swekham  v.,  i.,  420. 
Stocking,  Russell  v.,  ii.,  841. 

v.  State,  i.,  391. 
Stoddard,  Elliott  v.,  i.,  477. 
Stokeley,  State  v.,  ii.,  984. 
Stokes,  People  v.,  i.,   394. 
Stone  1).  Britton,  ii.,  932. 

v.  Byron,  i.,  287,  288,  289, 

293,  294. 
Cummings  v.,  ii.,  718. 
Hale  v.,  i.,  478. 
v.  Hubbard,  ii.,  875. 
Minor  v.,  i.,  411. 
v.  State,  i.,  394. 
Stonecifer,  People  v.,  i.,  393. 
Stopplefeldt  v.  Milwaukee,  i.,  52. 
Story,  Badger  v.,  479. 

Harris  «.,  ii.,  617. 
Co.,  Evans  «.,  ii.,  867. 
Stover  v.  Ellis,  i.,  404. 
Stow,  Commonwealth  v.,  i.,  393. 

v.  People,  ii.,  812. 
Strange  v.  Donobue,  i.,  477. 
Streeter,  Danforth  v.,  i.,  478. 

v.  Evans,  i.,  259. 
Strickland  v.  Poole,  ii.,  846. 
Strede  v.  Magowan,  ii.,  626. 
Strober  v.  Detroit,  &c,  R.  R.  Co., 

ii.,  719. 
Stromburg  v.  Earick,  ii.,  827. 
Strong  v.  Bower,  i.,  451. 
v.  Dean,  i.,  259. 
v.  Elsworth,  ii.,  932. 
Harding  v.,  i.,  409. 
v.  Strong,  ii.,  688. 
Strotber  v.  Lucas,  i.,  34,  ii.,  622. 

White  ».,  ii.,  847. 
Stuart,  Hoyt  v.,  i.,  439. 
Stublefield,  Ogden  v.,  ii.,  841. 
Stump  v.  Hughes,  i.,  414. 
Sturdevant  v.  Gaines,  ii.,  816 
Sturtevant,  Ex  parte,  i.,  340. 
Stuyvesant,  Haskins  *.,  ii.,  875. 


Suffern  v.  Butter,  i.,  420. 
Sullivan  v.  Goldman,  ii.,  687. 
v.  Lowder,  ii.,  844. 
People  v.,  i.,  394. 
Suiter  v.  Lackman,  ii.,  624. 
Summerlin  v.  Livino-ston,  ii.,  927. 
Sumner  v.  State,  i.,   391,  ii.,  539. 
Sun  Mut.  Ins.  Co.,  McCall  v.,  i., 

57. 
Susquehanna  Co.  Bank,  Spaulding 

v.,  ii.,  815. 
Sutherland,  Taylor  v.,  i.,  450. 
Suydam,  Rochester,  &c.  Bank  e.t 

ii.,  »88. 
Swan,  Cluggage  v.,  ii.,  984. 

v.  Middlesex  Co.,  i.,  304. 
v.  O'Fallon,  ii.,  875. 
Swank,  Austin  ».,  i.,  477. 
Sweckham  v.  Stockham,  i.,  420. 
Swergait  v.  Richards,  ii.,  87S. 
Swett,  Taylor  v.,  i.,  34. 
Swygart  v.  Taylor,  i.,  414. 
Sybert,  M'Call "».,  i.,  414. 
Sydnor  v.  Palmer,  i.,  57. 
Syme  v.  Stewart,  i.,  410. 
Symmes  v.  Major,  i.,  412. 
Symonds,  State  v.,  ii.,  983. 
Syracuse,  Parkers.,  i.,  428. 

Taft,  Chapin  v.,  ii.,  838. 
Taimball,  Spurr  v.,  ii.,  693. 
Talbot,  Dickerson  ».,  i.,  812. 

Grimes  v.,  ii.,  847. 
Talmagc,  Maury  «.,  i.,  490. 
Talinan,  Scbermerhorn  v.,  ii.,  632. 
Tanuahill,  Coveneyw.,  ii.,  987. 
Tanner  v.  Hughes,  i.,  499,  ii.,  685. 
Tappan  v.  Morseman,  ii.,  932. 
Tarbell,  Brooks?'.,  i.,  259. 
Tarpey,   Hensley  v.,  i.,  412. 
Taulman  v.  State,  i.,  189. 
Tawell,  Ex  parte,  ii.,  546. 
Tayloe  v.  Riggs,    ii.,  531. 
Taylor     r.  Bank  of  Alexandria,  i., 
34. 
v.  Boardmai.   i    410. 


1 194 


AMERICAN    CASES     CITED. 


Taylor,     Commonwealth     v.,     ii., 
907. 
v.      Crowningihield,      i., 

451.  § 
t\  Gould,  ii.,  851. 
e.  Graham,  i.,  411. 
v.  Greely,  ii.,  985. 
Halea.,  i.,  478. 
Howland  ©.,  i.,  442. 
v.  Jennings,  i.,  279. 
Phcenix  Ins.    Co.   v.,   i., 

815. 
v.  Rennie,  i.,  411. 
v.  Robinson,  ii.,  900. 
v.  Runyan,  i.,  410. 
v.  Swett,  i.,  34. 
Swygart  v.,  i.,  414. 
v.  Sutherland,  i.,  450. 
United  States  v.,  i.,  115. 
Walker  v.,  i.,  259. 
Will    case,    i.,    304,    ii., 

874. 
Windett  v.,  i.,  478. 
v.  Zepp,  ii.,  933. 
Teall  v.  Van  Wyck,  ii.,  815. 
Tcerpenning  v.  Coen,  i.,  304. 
Temple,  Pitts  v.,  i.,  414. 
Templeton  ».  Morgan,  i.,  411,  ii., 
622. 
New  Orleans  Canal  Co. 

v.,  i.,  411. 
v.  People,  i.,  395. 
v.  State,  i.,  394. 
Tennessee  Bank,  Pierce  v.,  i.,  400, 

402. 
Tenney  v.  Evans,  ii.,  847. 
Terrell,  State  v.,  i.,  115. 
Territt  v.  Woodruff,  i.,  410. 
Terrenoire,  Morris  v.,  i.,  421. 
Terry  v.  Ins.  Co.,  ii.,  727. 

Mut.  Life  Ins.    Co.,  ».,  i., 

727. 
Wood  v.,  ii.,  507,  568. 
Tevis  v.  Hicks,  i.,  476. 
Thalhimer  v.  Brinckerlioff,  i.,  398. 
Tharp  v.  Commonwealth,  ii.,   635. 


Thaver  v.  Barney,  i.,  402. 
v.  Boyle,  i.,  490. 
v.    Middlesex    Mutual   In- 
surance  Co  ,  i.,  399. 
Thayers,  People  «.,  ii.,  909. 
Theriott  v.  Bagioli,  ii.,  718. 
Thing,  Heald  v.,  ii.,  869. 
Thomas,  Babbott  v.,  i.,  278. 
v.  Bowman,  ii.,  934. 
v.  Chapman,  ii.,  985. 
«.    Commonwealth,     ii., 

982. 
v.  David,  i.,  295. 
Davis  v.,  ii.,  925. 
v.  Harding,  i.,  398,  400. 
Lunday  v.,  i.,  420. 
Quirk  v.,  ii.,  932. 
Steward  v.,  ii.,  900. 
v.  Stigers,  i.,  409. 
v.  Thomas,  i.,   258. 
Wesley  v.,  i.,  420. 
Thompson,   Carpenter  v.,  ii.,  923. 
v.  Church,  i.,  490. 
v.  Emmert,  ii.,  926. 
v.  Haskell,  i.,  411. 
v.  Lee,  i.,  499. 
Merritt  v.,  ii.,  695. 
Nanderkan  v.,  i.,   420. 
State  v.,  i.,  391,  ii.,  827. 
Tolmie  v.,  ii.,  635. 
Thorns,  People©.,  ii.,  907. 
Thomson,  Hager  «.,  ii.,  624. 
State  v.,  ii.,  908. 
Thorn,  Lockwood  v.,  i.,  33. 
Thornton  v.  Apple  ton,  ii.,  568. 

Black  v.,  i.,  479. 
Thorp,  Williams  v.,  ii.,  861. 
Thorpe,  Harvey  v.,  ii.,  821. 
Thoule  v.  Ritter,  i.,  259. 
Thrall,  Rutland,  &c,  R.  R.  Co.  t, 

ii.,  811. 
Thrasher  v.  Anderson,  i.,  421. 
Thurston  v.  Cornell,  i.,  33. 
Thurlow,     Commonwealth    t».,    i.t 

393,  509. 
Thurmond,  Cofer  v.,  ii.,  693. 


AMERICAN    CASES     CITED. 


1 195 


Tidmore,  Grims  v.,  i.,  499. 
Tilden,  Commonwealth  a.,ii.,  982. 

Howell  v.,  ii.,  844. 
Tillery  v.  Simmons,  i..  404. 
Tilley  v.  Tilley,  ii.,  693. 
Tilton,  Atherton  v.,  i.,  477. 
Ballou  c,  i.,  259. 
v.  Beecher,    i.,    189,    278, 

ii.,  995 
Timmons,  Armstrong  v.,  ii.,  813. 
Tinebro,  Lund  v.,  ii.,  893. 
Tingley  v.  Cowgill,  ii.,  890,  891. 
Tinn  v.  Wharf,  i.,  499. 
Tinney  v.  New  Jersey  Steamboat 

Co.,  ii.,  878. 
Tinsley,  Short  v.,  ii.,  900. 
Tiltow  v.  Tillow,  ii.,  6S9. 
Todd,  Leport  v.,  ii.,  687. 

Tyler  v.,  i.,  304,  ii.,  874. 
Toler  v.  State,  i.,  392. 
Toliver  v.  Moody,  i.,  52. 
Moody  v.,  i.,  52. 
Tolraie  v.  Thompson,  ii.,  635. 
Tone   v.  Parkersburg  R.   R.    Co., 

ii.,  890. 
Tomkins  v.  Reynolds,  i.,  477. 

v.  State,  ii.,  847. 
Tongue,  Nutwell  v.,  ii.,  923. 
Tootle,  State  v.,  i.,  409. 
Tuscan,  Myres  v.,  i.,  451. 
Tonthain,  Carver  v.,  i.,  304. 
Town,  State  v.,  i.,  394. 
Towns,  Delaney  v.,  i.,  428. 
Townsend  v.  Cowler,  i.,  420. 
Townshend,  Dykers  v.,  ii.,  718. 
Townsley,    Shelburne    Falls,    &c, 

Bank  v.  Townsley,  ii.,  685. 
Toola  v.  Peterson,  ii.,  841. 
Town,  State  v.,  i.,  393. 
Tracy  Peerage  Case,  i.,  471. 
Travelers'  Ins.  Co.,  Mallory  v.,  ii., 

567.  727. 
Travis  v.  Brown,  i.,  451. 
Traylor,  State  v.,  i.,  391. 
Tread  well  v.  Joseph,  i.,  499. 
Payne  v.,  i.,  409. 


Trenton,    &c. ,    Co.,   Pedicaris   «., 

i.,  409. 
Trimmer,    Commonwealth   c,    iL, 

717. 
Trinity   Church,   Johnson   «.,    ii., 

848. 
Troup  v.  Hurlbut,  i.,  414. 
Trowbridge  v.  Wheeler,  ii.,  842. 
Troy,  &c.  R.  R.  Co.,  Burlt.  v.,  ii., 

719. 
Trustees,  Judah  v.,  i.,  412. 
Tucker,  Clayton  v.,  i.,  477. 

Dana  v.,  ii.,  984. 

Jones®.,  ii.,  869,  878. 

v.  Maxwell,  i.,  428. 

Millman  a.,  i.,  199. 

v.  Peaselee,  i.,  477. 

v.  State,  ii.,  411. 

v.  Tucker,  ii.,  900. 
Tudale  v.  Conn.,  ii.,  693. 
Tull  v.  Pope,  i.,  52. 
Tullidge,  Clermont  v.,  i.,  465,  46a 
Tullisu.  Kidd,  ii.,  869. 
Tupper,  Earle  v.,  i.,  476. 
Turk  v.  State,  ii.,  983. 
Turner,  Farmer  ».,  i.,  478. 

State  v.,  i.,  393,  394. 

United  States  «.,  i.,  410. 
Turnley  v.  Black,  ii.,  596. 
Turnpike    Co.,    Royalton  «.,    iL, 

812. 
Turpin  v.  Brannon,  i.,  477. 
Tuttlc,  Waldron  v.,  ii.,  846. 
Tweedy  v.  State,  i.,  393. 
Twitchell,    Commonwealth  <?.,    L 

392. 
Twitty,  State  v.,  i.,  34.' 
Tyler  v.  Dyer,   ii.,  844. 

v.  Mather,  ii.,  900. 
v.  Todd,  i.,  304,  ii.,  874. 
Tyner  v.  State,  i.,  54,  391,  892. 
Tyngsborough,  Land  v.,  i.,  477. 
Udderzook,  Ex  parte,  i.,  311. 
Underwood,  Jones  v.,  ii.,  1046 
United  States®.  Armstrong,  i.,  898 
394. 


ng6 


AMERICAN    CASES     CITED. 


United  States  v.     Arredondo,    ii., 

622. 
v.     Bascadore,     ii., 

907. 
Bottom-ly  v.,  i.,  395, 

420. 
v.  Charles,  ii.,   907, 

984. 
Clifton  v.,  i.,  398. 
v.  Coleii.,  539. 
v.   Cornell,    i.,    393, 

394. 
v.  Craig,  i.,  438. 
Dauphin  v.,  ii.,  875. 
Delassus  v.,  ii.,6  22. 
v.  Distillery  One,  i., 

267 
V.  Douglass,  ii.,  539. 
v.  Duffy,  ii.,  907. 
v.  Foulke,  i:,  391. 
v.  Fries,  ii.,  1040. 
v.  Galacar,  ii.,  618. 
v.  Gibert,  ii.,  539. 
«.  Gooding  ii.,  539, 

618. 
Green  v.,  i.,  258. 
v.  Hanway,ii.,  1040. 
v.     Hawthorne,     i., 

260. 
v.  Harries,  i.,  267. 
v.  Hay  ward,  i.,  393. 
«,  Hewson,  i.,    391. 
v.  Hoxie,  ii.,   1040. 
v.  Hunter,  ii.,  907. 
Jane  v.,  ii.,  536. 
v.  Johnson,  i.,  34. 
v.  Keen,  i.,  450. 
e.  Kurtz,  ii.,  907. 
v.  Lawrence,  i.,  394, 

ii.,  567. 
v.  Lynn,  ii.,  532. 
«.  Martin,  ii.,  539. 
v.  McClare,  i.,  393. 
v.  McGlue,    L,    394, 

ii.,  567. 
v.  McGuire,  ii.,  869. 


United  States,  Medway  v.,  i.,  450. 
v.   Mingo,    i.,    393, 

394. 
v.  Mott,  ii.,  907. 
Nelson,  v.,  ii.,  539. 
v.  Omeara,  i.,  447. 
Packard  ».,  ii.,  985 
v.  Pocklington,   ii., 

907. 
v.    Purnphreys,     ii., 

907. 
v.  Reid,  ii.,  985. 
».  Richard,  ii.,  909. 
v.    Rondebush,     i., 

490. 
v.  Smith,  i.,  52,  267. 
v.  Taylor,  i.,  115. 
«.  The  Isle  of  Cuba, 

ii.,  539. 
».  Turner,  i.,  410. 
v.  Wiggins,  ii.,  536. 
v.  Williams,  i.,  3s*l, 

ii.,  91.0 
v.    Winchester,     i. 

398,  ii.,  819. 
Winter  v.,  ii.,  838. 
v.  Wood,  ii.,  1026. 
Bank  v.  Benniug,  ii., 
930. 
v.      Corcoran, 
ii.,  536. 
Express        Co.      v. 
Hutchins,  i.,  492. 
&c.        Ins.         Co., 
Jacobs  v.,  i.,  728. 
Unangst,  Shortz  v.,  i.,  404. 
Union  Bank  v.  Ellis,  ii.,  531. 
v.  Freeman,  i.,  34. 
v.  Knapp,  i.,  450. 
Canal  Co.  v.  Loyd,  ii.,  851. 
&c.    Co.,  Eastbrook  v.,  i., 

727. 
&c.  Ins.    Co.,    Gay  o.,  ii, 

727. 
Ins.  Co.,  Massonier,  v.,  ii^ 
826. 


AMERICAN    CASES     CITED. 


1 197 


Upham,  Stale  v.,  L,  393,  490. 
Urket  ®    Coryell,  i.,  414. 

Vaigner,  State  ®.,  ii.,  913. 
Vail,  Jackson  v.,  i.,  402. 

Farmers'  Bank  v.,  i.,  33. 
Shirley  v.,  i.,  278. 
Valentine  v.  Piper,  ii.,  591. 
Van  Buren  ®.  State,  ii.,  916. 
Van  Campen,  Biimhall  v.,  i.,  410. 
Van  Winkle,  State  v.,  ii.,  539. 
Vardenian  v.  Byrne,  ii.,  536. 
Varden,  Moflit  ».,  ii.,  693. 
Vander venter,  Shuck  v.,  L,  478. 
Vandervoort,    Hasbrouck    v.,    i., 

278. 
Van  Pelt,   Calais,   &c.  Co.  ®.,  ii., 

608. 
Van  Swearingen,   Hamilton  ®.,  i., 

402. 
Yanderwerkcr  ®.  People,  i.,  409. 
Vandine  ®.  Burfee,  ii.,  877. 
Vane,  Williams  v.,  i.,  421. 
Van  Rcnsaeller,  Ludlow®.,  i.,  410. 
Van  Wyck  v.  Mcintosh,  i.,  451. 
Van  Wyck,  Teall  v.,  i.,  815. 
Van  Zandt  ®.  Mutual,  &c.  Ins.  Co. 

i.,   727. 
Varick  v.  Briggs,  ii.,  900. 
Varney,  State  v.,  i.,  116. 
Vasbury,  Bartle  v.,  i.,  421. 
Vass  v.  Commonwealth,  i.,  116. 
Vassault  v.  Seitz,  L,  412. 
Vaughan   ®.    Commonwealth,    ii., 

730,  911. 
Vaulx®.  Merri weather,  i.,  812. 
Veal  ®.  Veal,  i.,   258. 
Vernon,  People  v.,  i.,  477. 
Veyant,  Pcnnel  v.,  ii.,  929. 
Videto,  People  ».,  ii.,  536,  539. 
Vincent,   Gibbes  v.,  ii.,  695. 
v.  State,  i.,  212. 
State    v.,    i.,     242,    391, 
393. 
Vining  v.  Baker,  ii.,   579. 
Vosburgh,  Goodyear  v.,  i.,  438. 


Vrendenburgh,     Jackson    v.,    iv, 

900. 
Vrooman  v.  King,  ii.,   900. 

Wabash,  &c.  Canal®.  Reinhart,  ii., 

827. 
Waddell  v.  Glassed,  i.,  420. 
Wade®.  Work,  ii.,  812. 
Wadhams,  Loomis  v.,  ii.,  848. 
Wadsworth  v.  Harrison,  i.,  478. 
Wadsworthville  School  v.  Meelze, 

ii.,  575. 
Waggoner,  Lilly  v.,  ii.  41. 
Wagner,  State®.,  i.,  115. 
Wainbourgh  ®.  Schank,  ii.,  693. 
Wait,  Brackett  v.,  ii.,  900.^ 
Wakeman  Marquand  i.,  34. 
Waldeu  ®.  Davison,  i.,  403. 
Waldron  ».  Tuttle,  ii.,   846. 

v.  Ward,  i.,  291. 
Wale,  Gilmore  ».,  i.,  403. 
Walker,  Bennett®.,  i..  401. 

0.  Hill,  i.,259. 

Memoney  v.,  ii.,  838. 

v.  Protection  Ins.  Co.,  ii. 
887. 

v.  State,  i.,  39:J. 

State  ®.,  ii.,  910. 

®.  Taylor,  i.,  259. 

Wallace,  Boone,   &c.  Bank  v.}  \. 
479. 

Campbell  ».,  ii.,  531. 

v.  Goodall,  ii.,  844 

Hedges  ».,  ii.,  841. 

Wallis,  Homer  v.,  i.,  450. 

Walpolc,  Whipple  ®.,  ii.,  877. 

Walrath,  Borland  v.,  i.,  420. 

Walter®.  People,  i.,  392. 

Pittsburgh  ».,  ii.,  630. 

Walters  v.  People,  i.,  395. 

v.  Short,  ii..  637. 

Walton,  Bryon  v.,  ii.,  932. 

Smith  v.,  ii.,  875. 

Ward,  Hedger  r.,  i.,  414. 

®.  Henderson,  i.,  490. 

v.  Henry,  i..  411. 


1 198 


AMERICAN    CASES     CITED. 


Ward  v.  Herndon,  ii.,  840. 
Merwin  v.,  i.,  404. 
Noyes  v.,  i.,  478. 
v.  People,  ii.,  915. 
v.  Saunders,  ii.,  900. 
t>.  State,  i.,  11G. 
State  v.,  i.,  438. 
"Waldron  v.,  i.,  291. 
Wardell,  Phyfe  v.,  i.,  420. 
Warden,  Cayuga  Bank  v.,   i.,  83. 
Ware  v.  State,  i.,  189. 
Warford,  Colvin  v.,  ii.,  579. 
Wariug,  Berry  v.,  ii.,  862. 

v.  Warren,  L,  398. ' 
Warner  v.  Daniels,  i.,  499,  ii.,  551. 
v.  Scott,  i.,  478. 
v.  State,  i.,  245. 
Warren  v.  Haight,  i.,  305. 
People  v.,  ii.,  730. 
v.  Pierce,  ii.,  643. 
v.  State,  ii.,  916. 
Succession  of,  ii.,  624. 
Waring  v.,  i.,  398. 
Westfield  v.,  ii.,  846. 
Warrington,  Granger  v.,  ii.,    683, 

988. 
Wash,  Mason  v.,  i.,  410. 
Washburn  Iron  Co.,  Wesson  v.  ii., 

862. 
Washington  Bank  v.  Prescott,  i., 
450. 
Ins.  Co.,  Flanigen  v., 

412. 
Ins.  Co.  v.  St.  Mary's 
Seminary,  i.,    161, 
419. 
Jefferson  v.,  ii.,  711. 
Toll  Bridge  Co.,  Car- 
ron  «.,  i.,  410. 
Wasten  v.  State,  i.,  393. 
Waterloo,  Bertiner  v.,  i.,  411. 
Waterman,  Sedgwick  v.,  i.,  404. 

State  v.,  i.,  391. 
Waters,  State  v.,  ii.,  842. 

Williams  v.,  i.,  400,  490. 
Wathall  v.  Wathall,  i.,  260. 


Watkinsa.  Pintard,  i.,  398. 
State  v.,  i.,  394. 
v.  Stockett,   i.,  420. 
Watrous  v.  Rogers,  ii.,  609. 
Watson  v.  Jones,  ii.,  559. 
Watts,  Johnson  v.,  ii.,  931. 
Wayman,  State  v.,  ii.,  816. 
Wear,  Royston  v.,  ii.,  930. 
Wearse  v.  Pierce,  ii.,  719. 
Weaver  v.  Fletcher,  i.,  161,  419. 

v.  McEthenon,  i.,  409. 
Webb  v.  Alexander,  ii.,  826. 
v.  Kelly,  i.,  477,  478. 
v.  Maurio,  ii.,  878. 
Montgomery    Plank    Road 

Co.  v.,  ii.,  687. 
Potter  v.,  I,  490. 
Webber  v.  Eastern  R.  R.  Co.,  ii.t 

879. 
Webster,    Commonwealth    v.,   ii., 
547. 
Ex    parte,    i.,   333,    ii., 

776. 
v.  Clark,  i.,  399. 
Commonwealth    v.,     i., 

391,  ii.,  874. 
Cummings  v.,  ii.,  933 
Manaiin  v.,  i.,  412. 
Weed,  Johnson  v.,  i.,  428. 
Week  v.  Lyon,  i.,  398,  ii.,  819. 
Weeks,  Lesseps  v.,  ii.,  624. 
v.  Lowerre,  i.,  478. 
Wehr  Rampt  v.  Willet,  i.,  278. 
Wehrum  v.  Kuhn,  i.,  52. 
Weiler,  Horan  v.,  ii.,  632. 
Welch,  Bishop  v.,  i.,  258. 
v.  Gould,  i.,  450. 
Mandeville  v.,  ii.,  718 
Weld,  Carr  v.,  ii.,  987. 
Welesly,  Pedley  v.,  i.,  139. 
Welley,  Doggett  v.,  ii.,  844. 
Wellington,  Bridge  v.,  ii.,  980. 
Wells  v.  Fairbanks,  ii.,  848. 
v.  Miller,  ii.,  813. 
v.  Pierce,  ii.,  932. 
v.  Shipp,  ii.,  838. 


AMERICAN    CASES     CITED. 


1 199 


Wells,   State  «.,  i.,  490. 
Welsh  v.  Barrett,  i.,  450. 

v.  State,  ii.,  946. 
Welting,  Bowman  v.,   i.,  400,   ii., 

820. 
Wendell  v.  Blanchard,  ii.,  643. 
Wendson,  Cabot  v.,  i.,  428. 
Wentworth,  State  ».,    i.,   395,  ii., 

912. 
Wentz,  People  v.,  ii.,  907. 
Wesley  v.  Thomas,  i.,  428. 
Wesson  v.  Washburn  Iron  Co.,  ii., 

862. 
West,  Heath  v.,  ii.,  841. 

McClelland  v.,  i.,  259. 

McCracken  v.,  ii.,  876. 

Shiels  v.,  i.,  499. 

v.  State,  i.,  393,  ii.,  602. 

White   Mountain    Bank   v., 

ii.,  934. 
Branch   Ins.  Co.  v.  Helfen- 
stein,  i.,  399. 
Westfield  v.  Warren,  ii.,  846. 
VVestlake  v.  St.  Lawrence,  &c.  Ins. 

Co.,  ii.,  873. 
Westmoreland  v.  State,  i.,  52. 
West  Point  Co.,  Lone  Star  Co.  v., 

ii.,  844. 
West  Stockbridge,  Stockbridge©., 

i.,  414. 
Western   R.    R.,   Baldwin   v.,  ii., 
841. 
&c.  R.  R.   Co.,  Mitchel 

v.,  ii.,  719. 
Union  R.  R.  Co.,  Snyder 
v.,  i.,  304. 
Wetherbee  v.  Dunn,  i.,  411. 
v.  Norris,  i.,  304. 
Wetmore  v.  Mell,  i.,  477. 
Whaley  v.  State,  i.,  392,  ii.,  910. 
Wharf,  Tinn  v.,  i.,  499. 
Wharton's    (Mrs.    Eliz.)    case,  ii., 

881. 
Wharton,  James  v.,  i.,  450. 
Wheat  v.  State,  i.,  393. 
Wheeler,  Brown  v.,  ii.,  932. 


Wheelei  v.  Ruckman,  ii.,  937. 

Trowbridge  «.,  ii.,  842. 
Whipple  v.  Walpole,  ii.,  877. 
Whitacre  v.  Culver,  ii.,  932. 
Whitaker,  Faulkner  v.,  ii.,  862. 

Saxon  v.,  ii.,  689. 
Whitam,  Buchanan  v.,  i.,  481. 
Whitcomb,  Harris  v.,  i.,  398. 
White  v.  Ballou,  ii.,  876. 

v.  Barney,  i.,  400,  402. 
Bright  ».,  i.,  34. 
Carpenter  v.,  i.,  278. 
v.  Chouteau,  ii.,  851. 
Cleft*.,  i.,  33. 
Emerson  v.,  ii.,  694,  848. 
v.  Langclon,  ii.,  932. 
Lockhart  v.,  ii.,  603. 
v.  Loring,  ii.,  591. 
Morton  v.,  ii.,  531. 
Nunnally  v.,  ii.,  637. 
v.  Stafford,  i.,  278. 
v.  Strother,  ii.,  847. 
v.  White,  ii.  695. 
Whitehill,  Lancaster,  Bank  of,  H- 

i..  451. 
White  Mountain  Bank  v.  West  ii., 

934. 
Whiteford  v.  Burkmeyer,  ii.,  89a 
Whitelow,  State  Bank  v.,  i.,  450. 
Whitely,  Cole  v.,  ii.,  893. 

Koll«.,iM  479. 
Whitesel,  Madison,  &c.  R.  R.  Ca 

v.,  i.,  404. 
Whiteside's  appeal,  ii.,  693. 
Whitesides  v.  Green,  i.,  259. 
v.  Poole,  i.,  410. 
Whitney  v.  Barney,  ii.,  987. 
v.  Nichol,  ii.,  693. 
Whitlock  v.  Castro,  i.,  409. 

v.  McKechinc,  ii.,  566. 
Whitmarsh  v.  Angle,  ii.,  879. 
Whitney  V.  Belden,  ii.,  928. 
v.  Gauche,  i.,  409. 
Mobile,  &c.  R.  R.   «.,  L 

412. 
Rush  v.,  ii.,  811. 


1200 


AMERICAN     CASES     CITED. 


Whitney  v.  Slayton,  i.,428. 

v.  Sprague,  i.,  402. 
Whittaker,  Morgan  v.,  i.,  259. 
Whitteniore,  Flix  v.,  ii.,  689. 

Loring  ».,  i.,  399. 
Whitten  v.  State,  i.,  492. 
Whittier  v.  Franklin,  i.,  490. 

©.State,  i.,  304,  ii.,   946. 
Whittmore,  Commonwealth  v.,  ii., 

912. 

Whitwell,  Garlinghouse  v.,  ii.,  934. 

Wicks  v.  Adirondac  Co. ,  ii.,  579. 
Wiggin,  Pike  v.,  ii.,  847. 
Wiggins,     United    States    v.,    ii., 

536. 
Wilcox,  Hartford  Fire  Ins.  Co.  v., 
i.,  161,   419. 
Lane  v.,  ii.,  877. 
Slater  v.,  i.,  304,  ii.,   807, 

891. 
v.  Wilcox,  ii.,  718. 
Wiley,  Shore  v.,  i.,  450. 
v.  State,  ii.,  916. 
Wilkes  v.  Dinsman,  ii.,  G22. 
Wilkie  v.  Collins,  i.,  422. 
Williins,  Moore  v.,  ii.,   711. 
Wooten  ».,  i.,  114. 
Wilkinson  ».  Scott,  i.,  423. 
Willard,  Cushing  v.,  i.,  478. 
Willett,  Wehrkampt  v.,  i.,  278. 
Williams  v.  Benton,  i.,  398,  ii.,  819. 
v.  Benton,  i.,  398,   ii., 

819. 
v.    Chandler,     ii.,     923, 

934. 
e.    Cheeseborough,    ii., 

825. 
v.  Clayton,  ii.,  900. 
v.  Commonwealth,    ii., 

909. 
Commonwealth    ».,   i. , 

114,  ii.,  875. 
t>.  Daviy,  i.,  259. 
v.  Drexel,  i.,  451. 
Gavin  v.,  i.,  259. 
c.  Hillegas,  i.,  414. 


Williams  v.  Hubbard,  i.,  411. 
v.  Jackson,  ii.,  932. 
v.  Jones,  ii.,  581. 
Lindsay  «.,  i.,  411. 
v.  McGrade,  i.,  52. 
v.  Melter,  i.,  402. 
Nichols  v.,  i.,  428. 
People  v.,  i.,  477,  478, 

ii.,  8C3. 
Richardson  v.,   i.,  409. 
State  v.,  i.,  116,  411,  ii., 

620. 
v.  Thorp,  ii.,  861. 
United     States    v.,    i., 

391,  ii.,  910. 
v.  Vane,  i.,  421. 
v.  Waters,  i.,  400,  490. 
Woodliouse  v.,  ii.,  928. 
Gallaher  v.,  ii.,  888. 
v.  Peel,  i.,  305. 
Williken,  Coit  v.,  i.,  34. 
Willis  v.  Fernald,  i.,  420. 

Georgia  R.  R.  Co.  v.,  ii., 

719. 
v.  Lewis,  ii.,  724. 
Richardson  v.,  ii.,  832. 
State  v.,  i.,  394. 
Wilmington  v.  Burlington,  ii.,  887. 
&c.  R.  R.  Co.,  Herring 
c,  ii.,  719. 
Wilson,  Anderson  v.,  i.,  258. 
v.  Betts,  i.,  414. 
v.  Boerum,  i.,  114. 
v.  Cartro,  ii.,  933. 
Cook  v.,  i.,  410. 
Crawford  v.,  ii.,  711. 
People  v.,L,  391. 
Seymour  v.,  i..  33. 
Slitt  v.,  i.,  477. 
v.  Smith,  i.,  34. 
State  v.,  i.,  115,  279. 
Winans  r.  Winans,  i.,  499. 

York,   &c,  R.  R.   Co.  e. 
i.,  411. 
Winbish,  Somerville  v.,  i.,  412. 
Windham,  Hampton  v.,  ii..  531. 


AMERICAN    CASES     CITED. 


I20I 


Winnemore,  Commonwealth  ®.,  i., 

212. 
Winston,  Allen  v.,  ii.,  932. 
Withers,  Noble  ®.,  i.,  258. 
Witherspoon,  Moffit  ®.,  ii.,  845. 
Witt  v.  State,  i.,  293. 
Witter,  Meyer®.,  i.,  433. 
Wolcott  «.  Holcomb,  i.,  499. 
Wolf,  Crawford  ®.,  ii.,  869. 
Wollastown,     Bank    v.,     ii.,    932, 

937. 
Wood,  Bailey  ®.,  ii.,  851. 
Clark  v.,  \,  414. 

Misli  v.,  ii.,  877. 

Sheldon®.,  i..  399. 

State  v.,  ii.,  867,  890. 
Woodland,  Franklin  ».,  i  ,  477. 
Wood  order  ®.  State,  i.,  115. 
Woodruff,  Territ®.,  i.,  410. 
Woods,  Bowman  «.,  ii.,  869. 
Woodsides  v.  State,  i.,  393,  394. 
Wooley  ®.  Edson,  ii.,  933. 
Wooten  ®.  Wilkins,  i.,  114. 
Wilson  ®.  Dear,  i,,  421. 

v.  Godlove,  ii.,  988. 

v.  Hillyer,  i.,  478. 

®.  Hin'es,  ii.,  861. 

v.  Kirkland,  ii.,  876. 

v.  People,  i.,  392. 

Pierce  v.,  i..  420. 

Porter  ®.,  ii.,  817. 

State  ».,  i.,  114. 

®.  Young,  ii.,  532. 
Winchester,   United  States  p.,  i., 

399,  ii.,  819. 
Winde+t  v.  Taylor,  i.,  478. 
Wing®.  Owen,  ii.,  596. 
Winship  ®.  Connor,  ii.,  693. 
Winston  v.  English,  i.,  259. 

®.  Gauthmey,  i.,  414. 
Winter®.  State,  i.,  391. 

®.  United  States,  ii.,  838. 
Winters,  People  v.,  i.,  395. 
Wiseman,  State  ®.,  i.,  52. 
Wiswall  o.  Kenevals,  ii.,  851. 
VYithcispoon  ®.  Blewlett,  i.,  259. 


Woburn  v.  Henshaw,  ii.,  937. 
Wolverton,  S.  P.,  v.  State,  ii.,915. 
Wood  v.  Barker,  i.,  478. 

First  National    Bank  of  v. 

i„  259. 
®.  Moorehouse,  ii.,  567,  568. 
People  ®.,  i.,  395. 
v.  Terry,  ii.,  567,  568. 
®.  Wrood,  ii.,  861. 
Woodford  ®.  McClenahan,  ii.,  878. 
Woodhouse  v.  Williams,  ii.,  926. 
Woodman,  Bell  v.,  i.,  439. 

Boardman  ».,  i.,  490. 
Woodrow,  Cooke  v.,  ii.,  814. 

®.  O'Connor,  i.,  410. 
Woodstock  ®.  Hartland,  ii.,  710. 
Woodward  ®.   Chicago,  &c.  R.  R. 
Co.,  i.,  409. 
®.  Spiller,  i.,  451. 
Wooley  ®.  Bruce,  ii.,  841. 
Woolf   (Leo),    Oppenheim    ®.,    i., 

499. 
Woicesrter  v.  Green,  ii.,  923. 
Work,  Wade®.,  ii.,  812. 
Workman,  Beach  v.,  i.,  411. 
Worrall  ».  Jones,  i.,  261. 
Wrath  v.  Norton,  ii..  539. 
Wriglit,  Brown  v.,  ii.,  825. 
Giles  ®.,  i.,  258. 
®.  Hawkins,  i.,  409,  412. 
®.    Illinois   Tel.    Co.,   ii., 

985. 
Lawrence  ®.,  i.,  32. 
®.  McKee,  i.,  490. 
Mercer  v.,  i.,  304 
®.  Phillips,  i.,  409. 
Stearns  v.,  i.,  259. 
Wroe  ®.  State,  i.,  116. 
Wyatt, 'Clark  v.,  i.,  451. 

State  «.,  i.,  52. 
Wycliffe,  Sharp  ®.,  ii.,  900. 
Wyinan  ®.  Perkins,  ii.,  932. 
Wynn,  Raglan  ®.,  i.,  411. 
Wynne  v.  Aubuchon,  ii.,  826. 

Yarborough  v.  Moss  i.,  477. 


1202 


AMERICAN    CASES     CITED. 


Yardley,  Samson  v.,  i.,  161. 
Yates,  Rundell  v.,  ii.,  987. 
Yell,  Pennington  v.  ii.,  533. 
York,    Commonwealth  v.,  i.,  393, 

894. 
York,  &c,  R.  R.  Co.,  v.  Winans, 
i.,  411. 

State  ».,  ii.,  911. 
Young,  Babbett  v.,  i.,  420. 

v.   Bank    of    Alexandria, 

i.,  24. 
Bell  v.,  ii.,  687. 
Bright  v.  i.,  399. 
Clark  v.,  ii.,  1006. 
«.  Commonwealth  i.,  114. 


Young,   Davidson  v.,  ii.,  933. 

v.  Gregory,  i.,  428. 

v.  Makepeace,  i.,  304,  ii., 
891. 

People  v.,  ii.,  983. 

Perkins  v.,  i.,  419. 

n.   Slaughterford,  i.,  238, 

Wilson  v.,  ii.,  532. 
Younger,  Phelps  v.,  ii.,  718. 

Zepp,  Taylor  v.y  ii.,  933. 
Zimmerman  v.  Lamb,  ii.,  901. 
Zeigler  v.  Hontz,  i.,  414. 
Zeller,  State  v.,  i.,  303,  394, 
Zerbe  v.  Miller,  i.,  499. 


INDEX. 


THE    REFERENCES  ARE   TO   THE   SECTIONS. 


Abduction 

The  female  a  competent  witness  in  cases  of,  though  marnea  to  th« 
accused,  177. 
Absence, 

Presumption  of  death  from,  429. 
Abstracts, 

Secondary  evidence,  472. 
Abuses, 

Of  judicial  evidence,   68. 

Of  artificial  presumptions,  325. 

Of  the  principle  of  incompetency,  63,  134. 
Accident, 

An  affirmative  hypothesis  affecting  real  evidence,  202. 
Accomplices, 

Evidence  of,  admissible,  170,  171. 
Accused  Persons, 

Presumed  innocent,  364. 

Jury  may  act  on  statements  made  by,  in  their  defense,  557. 

Must  not  be  subjected  to  judicial  interrogation,  557. 
Acquiescence  of  Owner  of  Inheritance, 

Possession  with,  necessary  to  raise  presumption  of  right,  379. 

Proof  of,  379. 
Act  of  Parliament, 

May  be  presumed  in  favor  of  possession,  393. 
Acta,  Res  inter  alios, 

Rule  as  to  ;  antiquity  of,  112,  n.  (£). 

Meaning  of,    506. 

Illustrations  of,  509. 

Exceptions  to,  510. 
Acting  in  Public  Capacity, 

Presumption  from,  356. 


1204  IXDEX.  \The  reference*  an 

Acts, 

Ambiguous,  construed  to  have  a  lawful  meaning,  347. 
Presumptions  in  support  of,  347. 
Addresses, 

Of  parties  or  their  counsel  at  trials,  how  regulated,  631. 
Adjective  Law, 

Judicial  evidence  a  branch  of,  76. 
Comes  to  perfection  later  than  substantive  law,  119. 
Adjournment  of  Trial,  646. 
Administrator, 

Title  of,  relates  back  to  death  of  deceased,  313 
Admiralty  Court, 

Introduction  of  viva  voce  evidence  into.  107. 
Judgments  in  rem  in,  effect  of,  593. 
Admissibility  of  Evidence, 

Distinction  between,  and  weight  of,  80. 
Is  matter  of  law,  lb. 

Facts  on  which   it  depends  are  to  be  decided  by 
the  court,  lb. 
General  rule  respecting, — the  best  evidence  must  be  given,  293. 
See  Best  Evidence. 
Admission, 

Before  trial,  630. 
Admissions, 

By  parties  to  a  suit. 

Whole  of,  must  be  taken  together,  520. 
Effect  of,  520,  525. 

As  primary  evidence  of  written  documents,  525. 
Admittance, 

To  copyhold,  presumed  in  favor  of  possession,  393. 
Ad  quod  Damnum, 

Writ  of,  presumed  in  favor  of  possession,  393. 
Adultery, 

Continuance  of,  when  presumed,  405. 
Proof  of,  441. 

Parties  competent  witnesses  in    proceedings  instituted  in   const 
quence  of,  181,  18"2,  183. 
And  their  husbands  and  wives,  lb. 
Privilege  as  to  answering  questions,  tending  to  show  that  witnes 

has  been  guilty  of,  lb. 
In  the  canon  law  not  provable  by  confession  alone,  441. 
Aliter  in  Divorce  Court,  567. 
Adverse  Witness, 

Who  is,  within  17  &  18  Vict.  c.  125,  s.  23,   644. 
Advocate, 

A  competent  witness,  184-186. 


tg  the  Sections.]  INDEX.  120$ 

Affidavit  of  Witness, 

When  it  may  be  read  at  the  trial,  103. 
Affiliation,  order  of, 

Corroborative  evidence  required  in  application  for, 
Affirmation, 

In  lieu  of  Oath,  when  allowed,  16G. 
Affirmative, 

Of  facts  or  propositions;    onus  of  proving  lies  on  the  party  who 
asserts,  266. 
See  Burden  op  Proof. 
Affirmative  Evidence, 

Better  than  negative,  270. 
Affirmative  Facts, 

How  distinguished  from  negative,  13. 
Agent, 

Admissions  by,  531. 

Can  not  delegate  his  authority,  531. 

Communications  to,  when  privileged  from  disclosure,  581. 
Alibi, 

When  true,  the  most  complete  of  all  defenses,  346. 

Means  of  detecting  when  fabricated,  655. 
ADegans  suam  turpitudinem  (or  suum  crimen)  non  est  audiendus, 

A  maxim  of  the  civil  law,  545. 

But  not  of  the  common  law,  lb. 
Almanack, 

May  be  referred  to  as  evidence,  253. 
Alterations, 

In  documents,  effect  of,  229. 
Ambiguity, 

Latent  and  patent  ambiguities,  difference  between,  226. 

Evidence  to  explain,  when  admissible,  226. 

Distinguished  from  unintelligibility  and  inaccuracy,  226. 

Avoids  judgments,  591. 
verdicts,  591. 
awards,  591. 
Ambiguous  Instruments  and  Acts, 

Construed  to  have  a  lawful  meaning,  347. 
Amendment  of  Variances, 

Statutes  authorizing  in  civil  cases,  286,  288. 
in  criminal  cases,  286. 
Ancestor, 

Death  of  remote,  without  issue,  when  presumed,  393. 
Ancient  Documents, 

Comparison  of  handwriting  in  cases  of,  240. 

Admissible  to  prove  matters  of  public  and  general  interest,  497. 

And  ancient  possession,  499. 


1 206  INDEX.  \  The  reference  t  an 

Ancient  Possession, 

Provable   by   ancient   documents  produced  from  proper  custody 
499. 
Animals,  instincts  and  habits  of, 

Presumptions  from,  316. 
Antecedent  conduct  or  position  of  accused, 

Presumption  of  guilt  from,  453. 
Ante  litem  motam, 

Meaning  of,  497-498. 

Declarations  of  deceased  members  of  a  family  admissible,  if  made, 
498. 

Prima  facie  proof  of  relationship  of  declarant  sufficient,  498,  n.  (x). 
Appeal,  Criminal, 

Court  of,  645. 
Appointment  of  public  officers, 

Acting  in  public  capacity,  evidence  of,  356, 
Appointments,  Official, 

Acting  in  public  capacity,  evidence  of,  356. 
Approvers, 

Evidence  of,  170. 
Arbitrators, 

Bound  by  the  legal  rules  of  evidence,  98. 
Artificial  Legal  Conviction,  69. 
Artificial  Presumptions, 

Abuse  of,  46-325. 

Legitimate  use  of,  325*. 
Atheism, 

Formerly  a  ground  of  incompetency  to  give  evidence,  165. 
Attendance  of  Witnesses, 

Exceptions  to  rule  requiring  the,  101,  106. 

In  general  compellable,  125. 
Attested  Instruments, 

Proof  of,  97,  220,  527. 
Attesting  Witness 

When  necessary  to  call,  97,  220,  527. 

To  -will,  devise,  &c.  to,  void,  144. 
Attorney, 

A  competent  witness,  184. 

Not  bound  to  produce  client's  documents  of  title,  216. 

Communications  to,  privileged  from  disclosure,  184,  581. 
Attorney-General, 

Right  of,  to  reply,  in  certain  cases,  631. 
Attorney  Witness, 

Order  for  witnesses  to  go  out  of  court  does  not  extend  to,  636. 
Attributive  Justice, 

How  distinguished  from  expletive,  36. 


to  the  Sections]  INDEX.  1207 

Autograph, 

What,  232. 
Awards, 

Presumptions  in  favor  of,  360. 
Void,  for  Avant  of  certainty,  591. 
Or  if  impossible,  591. 
Or  illegal,  591. 

Bank  Bills, 

When  provable  by  examined  copies,  487. 
Bank  of  England,  Books  of, 

Proveable  by  examined  copies,  487. 
Bastardy, 

Presumption  against,  349. 

Corroborative  evidence  required  in  proceedings  in,  621. 
Beginning,  Order  of;  Ordo  Incipiendi,  or  Right  to  begin, 

Decided  by  the  judge,  G31. 

Principles  by  which  it  is  governed,  637. 

In  some  cases  regulated  by  statute,  637. 

Erroneous  ruling  respecting,  when  ground  for  a  new  trial,  638. 

Advantages  and  disadvantages  of  having  to  begin,  639. 
Belief  in  Human  Testimony, 

Natural  tendency  to,  15. 
Belief  of  Jury, 

In  facts  presumed  in  support  of  possession,  whether  necessary,  399. 
Relief,  Religious, 

Want  of,  formerly  a  ground  of  incompetency,  161. 
Beneficial  Enjoyment, 

Presumptions  in  support  of,  392. 
Benefit, 

Presumption  of.  in  cases  of  grant  of  estate,  343. 

Presumption  of  willingness  to  accept,  343. 

False  self-criminative  statements  made  in  expectation  of ,  563. 
Benefiting  others, 

False  confessions  from  desire  of,  570. 
Best  Evidence  must  be  given, 

A  fundamental  principle  of  English  law,  62,  80,  87,  293. 

This  rule  very  often  misunderstood,  87. 

True    meauing  of    best,    understood    by  three   chief  applications 
of,  88. 

1.  Evidence  should  come  through  proper  instruments,  88. 
Judge  and  jury  must  not  decide  facts  on  their  personal 

knowledge,  88. 
Exceptions, 

1.  Matteis  noticed  ex  officio,  253. 

2.  Matters  deemed  notorious,  253. 


1 20S  INDEX.  [  The  rejerences  an 

Best  Evidence — continued. 

2.  Evidence  must  be  original,  and  not  derivative,  89. 
Exceptions,  484. 

See  Primary  Rules  op  Evidence,  and  Derivative 

Evidence. 
3.  There  must  be  a  visible  connection  between  the  principal 
and  the  evidentiary  facts,  90. 
Instances,  91-92. 
Bigamy,  Prosecutions  for, 

Competency  as  witness,  of  second  husband  or  wife,  177. 
An  actual  marriage  must  be  proved  in,  349. 
Parties  not  liable  to,  409. 
Bill  of  Exceptions, 
What,  642. 

Abolished  by  "  Supreme  Court  of  Judicature  Act,  1873,"  647. 
Bill  of  Exchange, 

Consideration  for,  presumed,  404. 

Presumed  to  have  been  accepted  within  reasonable  time  afterdate, 
404. 
Births,  Registers  of, 

Public  documents,  218. 
How  provable,  487. 
Births,  Registration  of,  statutes  relating  to,  121. 
Books  of  the  Bank  of  England, 

Proof  of,  487. 
Burden  of  proof,  or  Onus  Probandi, 
Object  of  rules  as  to,  42. 
Decided  by  the  judge,  82. 
Not    always  strictly   followed   when   they  press   against  accused 

persons.  95. 
Natural  principles  regulating    266. 
Legal  rules  affecting,  267. 
Test  for  determining,  268. 
Principles  regulating,  268. 
General  rule, 

Lies  on  the  party  who  asserts  the  affirmative,  269. 

Fallacy  of  the  maxim  that  a  negative  is  incapable  of 

proof.   270. 
Difference     between    negatives    and    negative    aver- 
ments, 271. 
Determined  by  the   affirmative  in   substance,  not  the 
affirmative  in  form,  273. 
When  shifted  by  presumptions,  273. 

Lies  on  the  party  who  has  peculiar  means  of  knowledge,  274. 
Sometimes  cast  on  parties  by  statute,  437. 
Wrong  decision  as  to,  ground  for  new  trial,  638. 


to  the  Sections.']  INDEX.  1 20q 

Business, 

Declarations  by  deceased  persons  in  course  of,  admissibility  of, 501. 

Presumptions  from  course  of,  401. 

Secrets  of,  not  protected,  586. 
By-laws  of  Corporations, 

Presumed  in  favor  of  possession,  393. 

Calculus  of  Probabilities, 

Application  of,  to  judicial  testimony,  73. 

And  to  illustrate  the  value  of  different  kinds  of  evidence,  74. 
Instance,  298,  n.  (g). 
Cancelling  deed, 

Prima  facie  evidence  of  revocation,  401. 
Canonical  Purgation, 

Object  of,  42. 

Abuses  of,   59. 
Canonists, 

Explanation  of  expressions  used  by,  to  indicate  different  kinds  of 
proof,  301. 
Canon  Law, 

Rules  of,  as  to  competency  of  witnesses,  62. 

Number  of  media  of  proof  required  by,  66-59T. 

System  of  artificial  legal  conviction  under,  69. 

Proof  of  adultery  in,  by  confession  alone,  441. 

Practice  of  torture  in,  554.  • 

Hearsay  evidence  looked  on  with  suspicion  by  117,  n.  (»). 
Carriers, 

Presumptions  affecting,  430. 
Casual  Evidence, 

What,  31. 
Casual  Presumptions, 

Not  so  strong  as  those  derived  from  course  of  nature,  332. 
Casual  Tribunals, 

Province  of,  80. 

Object  of,  83. 
Casual  Witnesses, 

Impolicy  of  rule  as  to  incompetency  of,  62. 
Causa, 

Evidence  in,  what,  87. 
Causam, 

Evidence  extra,  what,  86. 

How  affected  by  rule  requiring  primary  evidence,  473. 
Certainty, 

Original  sense  of,  6. 
Secondary — Moral  certainty,  6. 


1 2 1 0  INDEX.  [  The  re/erettces  art 

Certainty  of  Guilt, 

Degree  of,  required  in  criminal  cases,  95,  441. 
Certified  Copies, 

What,  488. 
Chain  of  Evidentiary  Facts,  295. 

Probative  force  of,  in  presumptive  proof,  296. 
Challenge, 

Lies  to  jury,  not  to  judge,  82. 
Chancery,  Court  of, 

Introduction  of  viva  voce  evidence  into,  107. 
Change  of  Life  or  Circumstances, 

Presumption  of  guilt  from,  319,  459. 
Chapel,  Ancient, 

Consecration  of,   presumed,    from   performance  of  Divine  service 
therein,  393. 
Character,  Evidence  of, 
Of  parties, 

When  receivable,  91,  257. 
Exception,  258. 
Rule  in  criminal  cases,  258. 
Liable  to  be  misunderstood,  260. 
May  be  contradicted,  2G1. 
But  not  by  proof  of  particular  acts,  261. 

Exceptions,  261. 
Witnesses  to,  treated  with  too  much  indulgence,  262. 
Of  witnesses,  263. 
Charities, 

Power  to  sell  lands,  when  presumed,  393. 
Chastity, 

Evidence  to  impeacli  in  cases  of  rape,  admissibility  of,  258. 
Chemical  Tests  for  poison, 

Observations  on,  448. 
Chief  Examination  in, 
Practices  as  to,  631. 

Leading  questions  not  in  general  allowed  on,  641. 
Exceptions,  642. 
Children,  Capacity  of  to  commit  Crime, 
Presumptions  as  to, 

when  under  seven  years  of  age,  306,  309. 
between  seven  and  fourteen,  314. 
Children,  Dying  Declarations  of, 

When  receivable,  157,  505. 
Children,  Testimony  of, 

Rules  as  to  admitting,  151,  156. 
China, 

False  confessions  of  capital  offenses  iu,  570,  note. 


to  tlie  Scl  tions]  INDEX.  1211 

Circumstantial  Evidence, 
What,   27,  294. 
Different  kinds  of, 

Conclusive,  27,  294. 
Presumptive,  27,  294. 
Equally  admissible  with  direct  evidence,  295. 
Comparison  between,  and  direct  evidence,  296. 
Not  affected  by  the  rule  requiring  primary  evidence,  491. 
See  Presumptive  Evidence. 
Civilians, 

Explanation  of  expressions  used  by,   to  indicate  different  kinds   of 
proof,  301. 
Civil  Law, 

Rules  of,  as  to  competency  of  witnesses,  63,  64. 
Practice  of,  as  to  number  of  media  of  proof,  65,  596. 
Practice  of  torture  in,  69,  554. 

Extravagant  weight  attached  to  confessions  by,  554. 
Proof  of  handwriting  in,  232,  n.  (a). 

Hearsay  in  general  looked  on  with  suspicion  by,  112,  n.  (wj. 
Rumor  received  as  evidence  in,  69,  471. 
Clergyman,  Confessions  made  to, 

Admissibility  of,  551,  583. 
Clerk  of  professional  adviser, 

Communications  to,  privileged  from  disclosure,  581. 
Cohabitation, 

Presumption  of  marriage  from,  349. 
Coincidences, 

Force  of  physical,  201. 

Either  moral  or  physical,  form  the  elements  or  links  of  a  chain  of 
presumptive  proof,  298. 
Collateral  Facts, 

Will    be    presumed,    in    order  to  give   validity   to    instruments, 
364. 
Collateral  Issues, 

Evidence  tending  to  raise  must  be  rejected,  644. 
Collusion, 

Vitiates  all  acts,  however  solemn,  227. 

or  even  judicial,  227. 
Commission  of  Lunacy, 

Finding  on,  evidence  against  third  parties,  593. 
Commission  to  examine  Witnesses, 

Will  be  refused,  if  applied  for,  for  purpose  of  delay,  47. 
Statutes  relating  to,  101,  105. 
Common  Calamity, 

Presumption  of  survivorship  in  cases  of  death  from,  410. 


1 2 1 2  INDEX.  [  The  references  an 

Common  Calamity — continued, 

French  law  as  to,  410.  N 

English  law  as  to,  410. 
Common  Carriers,  presumptions  affecting,  430. 
Comparison  of  Handwriting, 

Proof  by,  at  common  law,  238. 

under  the  17  &  18  Vict.  c.  125,  245. 
Competency.    See  Witness. 
Composition  Deed, 

Consent  of  ordinary  to— when  presumed,  393. 
Conclusive  Evidence. 

How  distinguished  from  estoppels,  533. 
Conclusive  and  Pinal  Decisions ;  difference  between,  589. 
Conclusive  Presumptions,  43,  306.     See  Presumptions. 
Confession, 

By  third  party,  not  examined  as  witness,  too  remote  to  be  legal 

evidence,  91. 
Evidence  against  the  party  making,  400, 
Proof  of  adultery  by,  441. 
Different  kinds  of, 
Plenary,  524. 
Not'plenary,  524. 

Inducement  to  confess,  effect  of,  551. 
Confession  to  Priest, 

How  far  privileged,  583. 
Confessions  in  Criminal  Cases, 
Different  kinds  of,  523. 
Sufficient  to  found  conviction,  548. 
Cases  in  which  they  ought  not  to  be  received,  548. 
Extra-judicial,  admissibility  of,  551. 
Confidential  Communications, 

Rules  as  to  the  admissibility  of,  528,  578,  586. 
Conflicting  Estoppels,  537. 
Conflicting  Presumptions,  329. 
Conflicting  Testimonies, 

Rules  for  determining  relative  weight  of,  24. 
Confusion  of  Mind, 

Presumption  of  guilt  from,  466. 
Conjectural  Evidence, 

How  distinguished  from  circumstantial,  92. 
Connection  between  Law  and  Pact,  1. 
Consecration  of  Ancient  Chapel, 

When  presumed,  393. 
Consent, 

How  far  the  rules  of  evidence  may  be  relaxed  by,  97. 


to  the  Sections.}  INDEX  1 2 1 3 

Consideration, 

Of  instruments  under  seal, 
Presumed,  220,  429. 
Exceptions, 

Where    instrument    is    impeached    for   fraud,    220,    227, 

429. 
Contracts  in  restraint  of  trade,  429. 
Of  contracts  not  under  seal, 

In  general  must  be  proved,  220. 
Exceptions, 

Bills  of  exchange  and  promissory  notes,  314,  404,  429. 
Conspiracy, 

Evidence  of  acts  and  declarations  of  parties  charged  with,  admis- 
sible against  each  other,  508. 
Construction  of  Instruments, 

Presumptions  relating  to,  347,  364. 
Consummation  of  Marriage, 

Presumed,  400. 
Contempt  of  Court, 

Presumption  against,  346. 
Continuance  of  Things  in  the  state  in  which  they  have  once  existed, 

Presumption  of,  405. 
Contracts,  Considerations  for,  presumption  as  to, 
Under  seal,  220. 
Not  under  seal,  220,  221,  429. 
Contracts  made  Abroad, 

Validity  of,  how  to  be  decided,  422. 
Control  of  Husband  ;    when  presumed  in   case  of   felony  by  married 

woman,  428. 
Convictions  by  Magistrates, 

The  maxim  "Omnia  pra3sumuntur,  &c,"  how  applied  to,  360. 
Copies, 

Various  kinds  of,  used  for  proof  of  documents,  486. 
Copy, 

Made  by  party  to  the  suit,  admissible,  482. 
Copy  of  a  Copy, 

Not  admissible,  486. 
Copyhold, 

Admittance  to — presumed,  393. 
Custom — presumed,   393. 
Enfranchisement  of — presumed,  393. 
Surrender  of — presumed,  393. 
Corporations, 

Books  of,  are  public  documents,  218. 
By-laws  of,  when  presumed,  393. 


1 2 1 4  INDEX.  [  The  references  an 

Corpus  Delicti, 

Proof  of,  must  be  clear  and  unequivocal,  441. 

Proof  of  corpus  delicti  in  different  classes  of  offenses. 

Delicta  facti  transeuntis,  441. 

Delicta  facti  permanentis,  442. 

Proof  of  facts  forming  basis  of  corpus  delicti,  442. 

Principles  on  \rLich  this  rule  is  founded,  443. 

Sound  policy  of,  444. 

Presumptive   evidence   receivable   to   complete  proof    of 

corpus  delicti,  447. 

To  fix  locus  delicti,  447. 

To    negative    natural    causes   or  irresponsible  agency, 

447. 

Proof  of,  in  cases  of  death  from  violence,  447. 

Accidental   destruction  or  creation  of  indicia, 

447. 

Proof  of,  in  cases  of  death  from  poison,  448. 

Physical  evidences  of,  448. 

Moral  evidences  of,  448. 

Chemical  tests  of,  448. 

Presumptive  evidence  always  admissible  to  disprove  corpus  delicti, 

450. 

Corroborative  Evidence, 

To  support  evidence  of  accomplices,  171. 

In  perjury,  603. 

In  bastardy,  621. 

In  actions  for  breach  of  promise  of  marriage,  621. 

Counsel, 

Communications  to,  privileged  from  disclosure,  53,  581. 

Competent  witness,  184. 

Counsel  in  Criminal  Cases, 

Practice  respecting  allowance  of,  632. 

County  Courts, 

Parties  to  suit,  made  competent  witnesses  in,  173. 

Course  of  Nature,  Presumptions  derived  from, 

In  general  stronger  than  casual  presumptions,  332. 

Instances  of,  338. 

Physical,  338.  340. 

Moral,  341,  344. 

Courts  of  Justice, 

Matters  of  which  they  take  notice,  ex  officio,  253. 

Presumed  in  a  special  sense  to  know  the  law,  337. 

Covin, 

Vitiates  all  acts,  however  solemn,  227. 

even  judicial,  227. 
Presumption  against,  349. 


to  the  Sections.']  INDEX.  1 2 1  «J 

Credibility.     See  "Witness. 
Criminal  Appeal, 

Court  of,  648. 
Criminal  Cases,  confessions  in, 
Different  kinds  of,  547. 
Sufficient  to  found  conviction,  548. 

When  they  ought  not  to  be  received,  548. 
Criminal  Conversation,  old  action  for. 

An  actual  marriage  must  have  been  proved  in,  349. 
Criminal  Proceedings, 

Rules  of  evidence  in,  generally  the  same  as  in  civil,  9* 
Difference  as  to  the  effect  of  evidence  in  the  two  cases    J5. 
Intent  more  material  in,  than  in  civil  proceedings,  96. 
Presumptive  evidence  in,  439. 
Rules  of  proof  in,  440. 

Applicable  universally,  440. 

Onus  of  proof  lies  on  prosecutor,  440. 
Evidence  must  exclude  to  a  moral  certainty  every  reason- 
able doubt,  440. 
In  matters  of  doubt  it  is  safer  to  acquit  than  condemn, 
49,  95,  440. 
Rules    peculiarly  applicable    where    the    proof    is    presumptive, 
441. 

There  must  be  clear  and   unequivocal   proof   of  the   corpus 

delicti,  441. 
The  hypothesis  of  guilt  should  be  consistent  with  all  the  facta 
proved,  298. 
Counsel  in,  practice  as  to  allowing,  632. 
Criminate,  Questions  or  Documents  tending  to, 
Right  to  refuse  to  answer  or  produce, 
Parties,  174,  216. 
Witnesses,  126. 
Cross-Examination,  or    examination    "ex    adverso,"    advantages  ol, 
100. 
As  to  previous  conviction.  263. 
As  to  previous  statements  in  writing,  481. 
Practice  as  to,  780. 
Leading  questions  allowed  on,  641. 
Advice  of  Quintilian  as  to  mode  of  conducting,  653. 
General  observations  as  to  course  of,  659. 
Crown, 

No  prescription  against,  at  common  law,  368. 
Crown,  Grant  from, 

Time  required  to  raise  presumption  of,  381. 
May  be  presumed  in  favor  of  possession,  393. 


.» 2 1 6  INDEX.  [  The  references  an 

Cruelty,  coupled  with  adultery,  suits  for, 

Competency  of  husband  and  wife  as  witnesses  in,  182. 

Right  to  cross-examine  as  to  adultery  in,  182. 
Custody,  Proper, 

Documents  must  be  produced  from,  to  be  admissible  as  evidence 
of  ancient  possession,  499. 
Customary  Rights, 

Distinguished  from  prescriptive,  369. 
Customs, 

Local,  must  be  proved,  33. 

Copyhold,  when  presumed,  393. 

Date, 

May  be  proved  by  almanack,  253. 

Documents  presumed  to  have  been  made  on  day  of,  108L 
Dead  Proofs, 

What,  216. 
Dead  Witness, 

Deposition  of,  may  be  given  in  evidence,  498. 
Deaf    and  Dumb  Persons, 

When  they  may  be  witnesses,  148. 

How  examined,  148. 

May  plead  by  interpreter,  521. 
Deans  and  Chapters, 

Books  of,  are  public  documents,  218. 
Death, 

Presumption  of,  from  absence,  409. 
Death   of  Remote  Ancestors  without  Issue, 

When  presumed,  393. 
Death  from  Poison, 

Proof  of  corpus  delicti  in  cases  of,  448. 
Death  from  Violence, 

Proof  of  corpus  delicti  in  cases  of,  447. 
Deaths,  Registers  of, 

Are  public  documents,  218. 

How  proved,  487. 
Deaths,  Registration  of, 

Statutes  as  to,  121. 
Debts, 

Presumption  of  continuance  of,  406. 
Declarations, 

Substituted  for  oaths,  167. 
Declarations  by  Deceased  Persons,  when  admissible, 

On  matters  of  public  and  general  interest,  497. 

On  questions  of  pedigree,  498. 


to  the  Sections]  INDEX.  121 J 

Declarations  by  Deceased  Persons — continued. 

Against  interest,  500. 

In  the  course  of  business,  501. 
Declarations,  Dying, 

Admissibility  of,  82,  505. 

Of  children,  157,  505. 
Declarations  of  intention  to  commit  offense, 

Presumption  of  guilt  from,  458. 
Dedication  of  Highway  to  the  Public, 

Presumption  of,  387. 
Deed, 

Must  be  sealed  and  delivered,   GO,  220. 

Consideration  for,   presumed,  220,  429. 

How  proved  at  common  law,  220. 

Under  the  C.  L.  P.  Act,  1854,  221. 

Impeachable  for  duress,  menace,  fraud,  covin,  or  collusion,  227. 

Revocation  of,  presumed  from  cancelling  or  taking  seals  off,  401. 

Presumed  executed  on  day  of  date,  402. 
Deed,  Estoppel  by,  542. 
Defamatory  publication, 

Malice  presumed  from,  433. 
Deficiency  of  Intellect, 

A  ground  of  incompetency,  140. 
Delay, 

Evidence  likely  to  produce,  excluded,  47,  587. 
Delegata  Potestas  non  potest  delegari,  673. 
Delicta  Pacti  permanentis, 

Proof  in  cases  of,  442. 
Delicta  Pacti  transeuntis, 

Proof  in  cases  of,  441. 
Demeanor  of  Witness, 

Effect  of.  in  estimating  credibility  of,  21,  100. 
Depositions  before  Justices  of  the  Peace, 

Must  be  put  in  writing,  105. 

May  be  given  in  evidence  when  witness  is  dead,  or  too  ill  to  attend 
trial,  496,  n.  (k). 

Practice  as  to  cross-examination  upon,  480,  481. 
Derivative  Evidence, 

Nature  of,  29. 

Infirmity  of,   30. 

Must  be  resorted  to  in  historical  investigations,  492. 

Rejection  of,  a  distinguishing  feature  of  the  English  law,  113. 

Admissible  to  test  credit  of  witness,  478. 

Forms  of, 

Supposed  oral  evidence,  delivered  through  oral,  492. 

77 


1 2 1 8  INDEX .  [  The  references  art 

Deriative  Evidence — continued. 

Supposed  written  evidence,  delivered  through  written,  492. 

Supposed  oral  evidence,  delivered  through  written,  492. 

Supposed  written  evidence,  delivered  through  oral,  492. 

Reported  real  evidence,  492. 
Distinguishable  from  res  gestse,  495. 

res  inter  alios  acta,  507. 
General  rule — Not  receivable  as  evidence  in  causa,  493. 
Reasons  commonly  assigned  for  this,  493. 
True  grounds  of,  494. 
Maxim  "Hearsay  is  not  evidence,"  495. 

Inaccuracy  of,  495. 
Exceptions  to  the  rule, 

1.  Evidence  of  deceased  witness  on  former  trial  between  the 

same  parties,  496. 

2.  Matters  of  public  and  general  interest,  497. 

May  be  proved  by  general  reputation,  497. 
Old  documents  of  various  kinds,  497. 

Declarations  made   "ante  litem  motam,"  by  deceased  per- 
sons, presumed  to    have   competent  knowledge  on  the 
subject,  498. 
Meaning  of  "  lis  mota,"  497. 
Value  of  this  kind  of  evidence,  497. 
8,  Matters  of  pedigree,  498. 
Instances  of,  498. 
Dangers  of,  498. 

4.  Ancient  possession,  499. 

Documents  to  prove,  must  have  come  from  proper  custody, 
499. 

5.  Declarations  by  deceased  persons   against   their  interests, 
500. 

Grounds  of  this  exception,  500. 

6.  Declarations  by  deceased  persons  in  the  regular  course  of 

business,  &c,  501. 
Limits  of  this  rule,  501. 
Must  have  been  made  contemporaneously  with  the  acts  to 

which  they  relate,  501. 
Semble,  need  not  be  written,  502. 
Tradesmen's  books,  503. 

Admissible  in  the  civil  law  and  by  the  laws  of  some 

other  countries,  503. 
Not  admissible  in  our  law,  503. 

Allowed  as  memoranda  to  refresh  memory,  508. 
Useful  as  indicative  evidence,  500. 

7.  Books  oi  deceased  incumbent,  504. 

8.  Dying  declarations,  505. 


to  the  Sections. J  INDEX.  12 1 9 

Derivative  Evidence — continued. 

In  what  cases  receivable,  505. 
Grounds  of  this  exception,  505. 

Solemnity   of    the   occasion    not    the    only  ground, 

505. 
The  difficulty  of  procuring  better  evidence,  505. 
Absence  of  interest  in  witnesses  to  invent  statement, 
505. 
Desertion,  Military, 

False  confessions  of,  569,  n.  (t). 
Desertion  coupled  with  Adultery, 

Competency  of  husband  and  wife  as  witnesses  in  cases  of,  182. 
Right  to  cross-examine  as  to  adultery  in,  182. 
Destroyed  Document, 

Secondary  evidence  of,  may  be  given,  482. 
Destroying  Instruments  of  Evidence, 

Presumption  of  guilt  arising  from,  412. 
Direct  Evidence, 
What,  27. 

Secondary  sense  in  jurisprudence,  27. 
Comparison  between,  and  presumptive  evidence,  296. 
Not  infallible,  463. 
Direction  to  Juries, 

Respecting  artificial  presumptions,  325. 
Presumptions  of  fact,  and  mixed  presumptions,  326. 
As  to  finding  the  existence  of  aright,  from  uninterrupted  modern 
user,  373. 
Discontinuance, 

Presumption  against,  350. 
Discovery, 

Of  documents  in  the  possession  or  power  of  opposite  party,  625 
Discrediting  Witnesses, 
The  adversary's,  644. 

1.  Evidence   may  be  given  of  general  bad  character  of  witness 

for  veracity,  644. 
Not  of  particular  facts,  644. 

2.  Statements  by  witness  inconsistent  with  his  evidence,  644. 
17  &  18  Vict.  c.  125,  s.  23.  644. 

28  Vict.  c.  18,  ss.  1,  4,  644. 

3.  Misconduct  connected  with  the  proceedings,  644. 
Witness  who  has  been  bribed,  644. 
Or  has  offered  to  bribe  others,  644. 

Or  used  expressions  of  animosity  and  revenge  against  the 
opposite  party,  644. 
The  party's  own,  645. 

1.  At  common  law,  645. 


1 2  20  INDEX.  F The  refer tnces  an 

Discrediting  Witnesses — continued. 

Not  allowable   to   give   general  evidence  to   show  witness 

unworthy  of  belief,  645. 
But  might  show  his  evidence  untrue  in  fact,  G45. 

Whether  competent  to  show  that  witness  had  made  state- 
ments   inconsistent    with    his    evidence — an    unsettled 
point,  G45. 
2.  17  &  18  Vict.  c.  125,  s.  22  ;  28  Vict.  c.  18,  ss.  3,  1,  645. 
Meaning  of  "adverse"  in  this  enactment,  645. 
Discretion  of  Judge, 

As  to  the  reception  of  evidence,  86. 
In  allowing  objections  to  evidence  to  be  withdrawn,  97. 
Does  not  empower  him  to  receive  prohibited  evidence,  116,  623. 
Disgrace,  Questions  Tending  to, 

Whether  witness  bound  to  answer,  130. 
Disseisin, 

Presumption  against,  350. 
Disseverance  of  Tithes, 

May  be  presumed,  393. 
Dissimilarities,  Physical,  effect  of,   in  evidence,  201. 
Inculpative,  201. 
Exculpative,  201. 
Ditch  bounding  Inclo&"J.re, 

Presumption  as  to  property  in  soil  of,  542. 
Documents, 

What,  215. 

How  obtained,  when  wanted  for  evidence,  216. 
When  in  possession  of  opposite  party,  216. 
Notice  to  produce,  216. 
When  in  possession  of  third  party,  216. 
Subpoena  duces  tecum,  216. 

Cases  in  which  production  of,  will  be  excused,  216. 
Admissibility  and  leg-al  construction  of,  is  for  court,  216. 
All  other  questions  respecting,  for  jury,  216. 
Although    not  evidence,    may   be   used  to   refresh    memory,    224, 

503. 
IIow  far  vitiated  by  interlineations  and  erasures,  229. 
Presumed  not  to  have  been  tortiously  come  by,  350. 
Presumption  that  they  will  not  be  withheld,  350. 
Presumed  to  have  been  made  or  written  on  the  day  they  bear  date, 

402. 
Inspection  of,  C24. 

Discovery  of,  in  possession  or  power  of  opposite  party,  625. 
Admission  of,  before  trial,  630. 
Domestic  Jurisdiction, 

Different  from  public   39. 


to  the  Sections.]  INDEX.  1221 

Domestic  Relations, 

A  source  of  false  testimony,  193. 
Domicil, 

Presumptions  relating  to,  421. 
Double  Principle  of  Decision, 

What,  74. 
Drunkenness, 

Incompetency  of  witnesses  from,  133,  148. 

Self-disserving  statements  by  parties  in  a  state  of,  529, 
Duration  of  Life, 

Presumption  as  to,  408. 
Duress, 

Vitiates  all  acts,  however  solemn,  227. 

even  judicial,  227. 
Duress,  Criminative  Statement  extracted  by, 

Not  receivable,  551. 
Duty,  discharge  of, 

Presumption  of,  348. 
Dying  Declarations,  Admissibility  ofj 

In  general,  82,  505. 

Of  children,  157,  505. 


Easements, 

In  gross ;  2  &  3  Will.  4,  c.  71,  does  not  &frtily  to,  88t 

Presumption  of  extinguishment  of,  fron.  non-user,  38;, 

Continuous,  what.  387. 

Intermittent,  what,  390. 
East  India  Company's  Books, 

Proof  of,  487. 
Ecclesiastical  Courts, 

Introduction  of  viva  voce  evidence  into,  107. 
Eloigning  Instruments  of  Evidence, 

Presumptions  arising  from,  412. 
Encroachments  by  tenants, 

Presumption  as  to  property  in,  428. 
Endowment, 

Of  vicarage,  may  be  presumed,  393. 
Enfranchisement, 

Of  copyhold,  when  presumed,  393. 
Enjoyment,  Beneficial, 

Presumptions  in  support  of,  394. 
Enmity,  to  litigant  party, 

A  ground  of  suspicion  as  to  the  credit  of  witness,  19% 
Equivocation, 

A  form  of  evasive  responsion,  657. 


1222  INDEX.  [Tht  referents  or, 

Erasures, 

Documents,  how  far  vitiated  by,  229. 
Estoppels, 

Found  in  almost  every  system  of  jurisprudence,  111. 

in  English  law  at  a  very  early  period,  111. 
Nature  of,  533. 

How  they  differ  from  conclusive  evidence,  533. 

Use  of,  534. 
Principal  niles  relative  to, 

1.  Must  be  mutual  or  reciprocal,  535. 

2.  In  general  only  affect  parties  and  privies,  536. 

3.  Conflicting  estoppels  neutralize  each  other,  537. 
Different  kinds  of,  538. 

1.  By  matter  of  record,  539. 

Pleadiug.  540. 

Admissions  in  pleadings,  541. 

2.  By  deed,  542. 

Recitals,   542. 

3.  By  matter  in  pais,  543. 
How  made  available,  544. 

By  record  or  deed  must  be  pleaded,  if  there  be  an  opportunity, 

544,  594. 
In  pais,  aliter,  544. 
"  Allegans  suam  turpitudinem  (or  suum  crimen)  non  est  audiendus, ' 
not  a  maxim  of  the  common  law,  545. 
Estoppels  in  Criminal  Cases,  548. 
Judicial  confession,  548. 
Pleading,  549. 
Collateral  matters,  550. 
Evasion  of  Justice,  presumption  of  guilt  from,  460. 

Change  of  place  only  presumptive  evidence  of,  461. 
Infirmative  hypotheses,  462. 
Generally,  462. 
Character  of  tribunals,  462. 
Misconduct  of  the  public  press,  463. 
Offenses  committed  under  prospect  of  change  of  place,  464. 
Ancient  laws  on  this  subject,  465. 
Observations  on,  465 
Evasive  Responsion, 

Presumption  of  guilt  from,  575. 
Evidence, 

Original  sense  of  the  word,  11. 
Definition,  1 1 . 
Ab  intra  and  ab  extra,  14. 
Divisions  of, 

Division  the  first,  27. 


to  the  Sections]  INDEX.  1223 

Evidence — con  tinned. 

Direct  evidence,  27. 

Original  sense  of,  27. 
Secondary  sense  in  jurisprudence,  27. 
Indirect,   or  circumstantial,    evidence,  27.     See  Cibctjm- 
stantial  Evidence. 
Conclusive,  27. 

Presumptive,  27.     See  Presumptive  Evidence. 
Division  the  second,  28. 

Real  evidence,  28.     See  Real  Evidence. 
Immediate,  28. 
Reported,  28. 
Personal  evidence,  28. 
Division  the  third,  29. 

Original  evidence,  29. 

Derivative  evidence,  29.     See  Derivative  Evidence. 
Infirmity  of,   30. 
Forms  of, 

Supposed  oral  evidence  delivered  through  oral, 

i.  e.,  hearsay  evidence,  492. 
Supposed    written   evidence    delivered   through 

written,  492. 
Supposed  oral  evidence  delivered  through  written, 

492. 
Supposed   written   evidence    delivered    through 

oral,  492. 
Reported  real  evidence,  492. 
Division  the  fourth, 

Pre-appointed   or   pre-constituted  evidence,  31,    60.     See 
Pre- appointed  Evidence. 
Usually  in  a  written  form,  31. 
Not  necessarily,  31. 
Prescribed  forms  of,  60. 
Casual  evidence,  31. 
Evidence,  Judicial, 
What,  32,  33,  76. 

Its  rules  exclusionary  or  investitive,  34. 

Principles  which  give  birth  to  municipal  huv,  applicable  to  judicia. 
evidence,  36,  38. 

Necessity  for  limiting  the  discretion  of  tribunals  in  determin- 
ing facts,  38. 
Necessity  for  the  speedy  action  of  tribunals,  41. 
In  framing  rules  of   judicial  proof,  the  consequences  of  deci 

sions  must  be  looked  to,  49. 
Difference  between  the  securities  for  legal  and  historical  truth 

50. 


1224  INDEX.  [The  references  art 

Evidence,  Judicial — continued. 
Principal  abuses  of,  68. 

Artificial  legal  conviction,  69. 
Double  principle  of  decision,  74. 
Varies  with  substantive  law,  customs  of  society,  &c,  75. 
Grounds  of,  in  general,  79. 

Characteristic  features  of  the  English  system,  80. 
Two  forms  of, 
Direct,  294. 
Circumstantial,  294. 
Conclusive,  294. 
Presumptive,  294. 
Evidence,  English  law  of, 
General  view  of,  79,  107. 
History  of  the  rise  and  progress  of,  108,  120. 
A  noble  system  taken  as  a  whole,  120. 
Detects  in,  120. 
Characteristic  features  of,  80. 

The  admissibility  of  evidence  is  matter  of  law,  the  weight  Of 
evidence  is  matter  of  fact,  80. 

Common-law  tribunal  for  deciding  issues  of  fact,  82. 
Function  of  the  judge,  82. 

jury,  82. 
Principles  on  which    this  mode  of  trial  is  founded 
83. 
Rules  regulating  the  admissibility  of  evidence,  86. 

1.  Evidence  in  causa,  8«. 

2.  Evidence  extra  causam,  86. 

3.  Rules  of  forensic  proof,  86. 

General  rule,  the  best  evidence  must  be  given,  87. 
This  rule  very  often  misunderstood,  87. 
Three  chief  appUcations  of,  88. 

Judge  and  jury  must  not,  in  general,  decide  facts  on  their 

personal  knowledge,  88. 
Original  evidence  should,  in  general,  be  exacted,  89. 
There  must  be  an  open  and  visible  connection  between  the 
principal  and  the  evidentiary  facts,  90. 
Indicative  evidence,  93. 
Rules  of  evidence  are,  in   general,  the  same  in  civil  and  criminal 

proceedings,  94. 
Difference  as   to   the   effect    of    evidence  in    civil   and    criminal 
proceedings,  95. 
How   far  the  rules  of  evidence  may  be   relaxed  by  consent, 
97. 
Two  other  remarkable  features  of, 
Checks  on  witnesses,  100. 


to  the  Sections.]  INDEX.  1 22  5 

Evidence,  English  Law  of — continued. 

Viva  voce  examination,  100. 
Publicity  of  judicial  proceedings,  100. 
Exceptions  to   the  rule  requiring  the  personal   attendance  of 

•witnesses  at  trials,  101. 
Salutary  effects  of  tlve  publicity  of  judicial  proceedings  on  the 

tribunal  and  spectators,  10G. 
Generally,  all  persons  are  compellable  to  give  evidence,  125. 
Rules  of  evidence,  either  primary  or  secondary,  249. 
Primary,  250. 
Secondary,  293. 
Documentary  evidence, 

When  in  possession  of  the  opposite  party,  how  procured,  216. 

of  a  third  party,  21G. 
Inspection  of,  624. 
Discovery  of,  625. 
Real  evidence,  196. 

Ruling  of  court  on  matters  of  evidence,  how  questioned,  647. 
Evidence,  Verdict  against, 

What  is,  82. 
Evidentia  Rei  vel  Facti.     See  Real  Evidence. 
Evidentiary  Facts, 

What,  11. 
Ex  Adverso  evidence.     See  Cross-Examination. 
Exaggeration, 

More  frequent  than  fabrication,  26. 
Examination, 

Of  infants  by  judge,  to  ascertain  competency,  156. 
Of  accused  persons, 

Before  justices  of  the  peace,  105. 
Of  parties  on  interrogatories  before  trial,  627. 
Of  witnesses, 

Direct  examination,  or  examination-in-chief,  631. 

Leading  questious  not  in  general  allowed  in,  641. 

Exceptions,  642. 
Rules  for  conducting,  where  witness  is  favorable,  652. 

where  his  disposition  is  uncertain 
652. 
Cross-examination,  or  examination  ex  adverso,  100,  631. 
Advantages  of,  100. 
Observations  as  to  the  course  of,  659. 
Dangers  of,  660. 
Leading  questions  in  general  allowable,  631. 

When  not,  641. 
Rules  for  conducting,  653. 
Re-examination,  631. 


1226  INDEX.  [  The  rcfoxncet  *t 

Examination — continued. 

On  the  voir  dye,  133,  631. 
Examined  Copies, 

What,  486. 
Exception  or  Qualification, 

Burden  of  proof  of,  265. 
Exceptions,  Bill  of, 

What,  647. 

Now  abolished,  810. 
Exchequer, 

Tallies  of,  what,  215. 
Exchequer,  The,  Judgments  in  rem  in, 

Evidence  against  third  parties,  593. 
Exclusionary  Rules  of  Evidence, 

What,  34. 
Execution  of  Attested  Instruments, 

Proof  of,  97,  220,  527. 
Executor, 

Title  of,  relates  back  to  death  of  deceased,  813. 
Executorship, 

Presumed,  393. 
Exemplifications,  proof  of  documents  by, 

Under  the  great  seal,  486. 
seals  of  court,  486. 
Exemption, 

From  tithes,  may  be  presumed,  393. 
Ex  Officio, 

Matters  noticed  by  the  courts,  253. 
Expense, 

Evidence  likely  to  produce,  excluded,  47. 
Experts, 

Admissibility  of  evidence  of,  513-515. 

Under  the  French  law.  515. 
Expletive  Justice, 

Distinguished  from  attributive,  36. 
Extinguishment  of  Rights  by  Non-user, 

Presumption  of,  388. 
Extrajudicial  Acts, 

Presumption  in  favor  of  validity  of,  362. 
Extrajudicial  Confessions,  admissibility  of,  651. 
Extrinsic  Evidence, 

To  contradict,  vary  or  explain  written  instruments,  when  receira- 
ble,  226. 

Fabrication  of  Evidence, 

Presumption  arising  from,  412. 


to  the  Stctions^  INDEX.-  1227 

Fact, 

In  English  law,  weight  of  evidence  is  matter  of,  80. 

Common-law  tribunal  for  trial  of  issues  of,  82. 

Presumptions  of.     See  Presumptions. 

Self-disserving  statements  made  under  mistake  of,  effect  of,  530,  700. 

Facts, 

Connection  between  law  and,  1. 
Investigation  of,  by  judicial  tribunals,  2. 
Divisions  of,  12. 

Physical  and  psychological,  12. 
Events  and  states  of  things,  13. 
Positive,  or  affirmative,  and  negative,  13. 
Source  of  persuasion  as  to  existence  or  non-existence  of,  14. 
"  Facts  can  not  lie," 

Fallacy  of  this  maxim,  469. 
Factum  probandum  and  Factum  probans, 

"What  is  meant  by,  10. 
False  Confessions  of  Guilt.     See  Self-regardihg  EviDENCB. 
Falsehood, 

Sometimes  produced  by  sanctions  of  truth,  20. 
In  quantity,  what,  656. 
In  quality,  what,  656. 
False  Responsion, 

Presumption  of  guilt  from,  576. 
Fear,  indicated  by  passive  deportment, 
Presumption  of  guilt  from,  466. 
Infirmative  hypotheses,  466. 
Indicated  by  a  desire  for  secrecy, 
Presumption  of  guilt  from,  467. 
Infirmative  hypotheses,  487. 
Felony, 

Children  under  seven,  presumed  incapable  of  committing,  152,  314, 

338. 
Rule  when  age  is  between  seven  and  fourteen,  425. 
Counsel  in  cases  of,  632. 
Rule  as  to  allowing  new  trial  in  cases  of,  648. 
Felony  by  Married  Woman, 

When  presumed  to  be  committed  under  control  of  husband,  428. 
Fences, 

Liability  to  repair,  may  be  presumed,  393. 
Feoffment, 

May  be  presumed,  393. 
Fiction*  of  Law, 
Nature  of,  309. 
Use  of,  310. 
Rules  respecting, 


1228  INDEX.  iThe  references 

Fictions  of  Law — continued. 

Must  not  prejudice  innocent  parties,  311. 
Must  have  a  possible  subject-matter,  812. 
Kinds  of, 

Affirmative,  313. 

Negative,  313. 

Fictions  of  relation,  313. 

to  persons,  318. 
things,  313. 
place,  313. 
time,  313. 
Fine, 

May  be  presumed,  393. 
Fishery,  Right  of, 

Ownership  of  soil  prima  facie  evidence  of,  427. 
Fishery,   Several, 

Lawful  origin  of,  may  be  presumed,  393. 
Owner  of,  presumed  to  be  owner  of  soil,  427. 
Fixed  Tribunals, 

What,  83. 
Flight  from  Justice, 

Presumption  of  guilt  from,  460. 
Footmarks, 

Presumption  of  guilt  from,  319. 
Foreign  Contract, 

Validity  of,  how  to  be  determined,  422. 
Foreign  Laws, 

Must  be  proved  as  facts,  33. 
How  far  adopted  by  the  common  law,  420. 
How  proved,  513. 
Foreign  Marriage, 

Presumed  to  have  been  performed  according  to  the  lex  loci,  428. 
Foreign  Sovereign,  the  subject  of  another  state, 

Presumption  as  to  acts  done  by,  418. 
Forensic  Practice  respecting  Evidence,  previous  to  trial,  024. 

Trial  and  its  incidents,  631. 
Forfeiture,  questions  tending  to  expose  to, 
Witnesses  not  bound  to  answer,  126. 
Parties  examined  on  interrogatories,  628. 
Forgery  of  Evidence, 

Presumption  of  guilt  from,  412. 
Forgery  of  Real  Evidence,  203. 
Forms, 

Necessity  for,  in  judicial  evidence,  39,  40. 
Fraud, 

Vitiates  all  acts,  howeve-  solemn,  227. 


to  the  Sections.]  INDEX.  122Q 

Fraud — con  tinued. 

Vitiates  all  acts,  however  solemn,  even  judicial,  227,  595. 

Presumption  against,  314,  349. 

Party  not  allowed  to  take  advantage  of  his  own,  540. 
French  Law, 

System  of  artificial  legal  conviction  under,  G9. 

Hearsay  evidence  under,  112,  n.  (n). 

Proof  of  handwriting  under,  232,  n.  (a) 

Evidence  of  experts  under,  515. 
Friendship, 

With  litigant  party,  ground  of  suspicion  to  the  credit  of  a  witness, 
193. 

Secrets  of,  not  protected,  586. 

General  Interest,  Matters  of, 

Provable  by  derivative  evidence,  497. 
Generality, 

A  resource  of  evasive  witnesses,  657. 
Gestation, 

Maximum  term  of,  339. 

Minimum  term  of,  340. 
Gift, 

Money  advanced  by  parent  to  child,  presumed  to  be,  841. 
Grand  Jurors, 

Proceedings  of,  privileged  from  disclosure,  579. 
Grant, 

Prescription  presupposes,  3G8. 

Applies  only  to  rights  which  lie  in,  368. 

Evidence  from  which  it  may  be  presumed,  373,  380. 
Grant,  Non-Existing, 

Title  by,  377. 

evidence  in  support  of,  377. 
against  the  Crown,  381. 
against  the  public,  381. 
Guilt,  Presumption  against,  314,  834,  346. 

Habits  of  Society, 

Presumptions  from,  400. 
Handwriting,  proof  of, 
Generally,  232. 

By  resemblance  to  that  of  supposed  writer,  233. 
Different  forms  of  proof,  233. 
"Ex  visu  scriptionis,"  234. 
"Ex  scriptis  olim  visis,"  235. 
Refreshing  memory  of  witness  to,  237. 
"Ex  comparatione  scriptorum,"  238. 


1 230  INDEX.  [  The  references  art 

Handwriting — contin  ued. 

General  rule  of  common  law,  not  receivable,  238. 
Exceptions,  239. 

Documents  which  are  evidence  in  the  cause,  239. 
Ancient  documents,  240. 
Alterations  introduced  by  17  &  18  Vict.  c.  125,  ss.  27, 
103,  and  28  Vict.  c.  18,  245. 
Proof  of  handwriting  to  modern  documents  by  knowledge  acquired 

from  specimens,  243. 
Testing  evidence  of  witnesses  by  irrelevant  documents,  244. 
Scientific  evidence  that  writing  is  in  feigned  hand,  246. 
Infirmative  circumstances  affecting,  247. 
Ancient  practice  respecting,  248. 
In  Roman  law,  232,  n.  (a). 
French  law,  232,  n.  (a). 
Hearsay  Evidence, 

Inaccuracy  of  this  expression,  89. 

Often  confounded  with  res  gestsE,  495.     See  Derivative  Evedencb. 
Hearsay  not  Evidence, 

Inaccuracy  of  this  maxim,  495. 
Heralds,  Books  of  Visitations  of, 
Receivable  in  evidence,  218. 
Highway,  Private, 

Presumption  as  to  property  in  soil  of,  426. 
Highway,  Public, 

Presumption  as  to  dedication  of,  387. 

as  to  property  in  soil  of,  426. 
Hindu  Law, 

As  to  the  testimony  of  women,  64. 

minors  in,  151,  n.  (f). 
Allows  false  testimony  in  certain  cases,  165,  n.  («). 
Number  of  media  of  proof  required  by,  n.  (a). 

Hindu  Witness, 

How  sworn,  163. 
Historical  Evidence, 

General  nature  of,  50,  53. 

Mistakes  from  confounding  it  with  legal  evidence,  58. 
History,  Matters  of, 

When  evidence,  640. 
Holograph, 

What.  232. 
Homicide, 

Facts  which  raise  presumption  of,  319. 
Presumption  of  malice  from,  433. 
Human  Mind, 

General  view  of,  as  regards, 


to  the  Sections.]  INDEX.  1 23 1 

Handwriting — continued. 

1.  The  sources  of  ideas,  3. 

2.  The  objects  about  which  it  is  conversant,  5. 

3.  The  intensity  of  persuasion,  6. 

Natural  tendency  of,   to  suppose  order  and  conformity  in  humaD 
affairs,  296,  451. 
Human  Testimony, 

Presumption  of  the  truth  of,  352. 

Grounds  of,  352. 
Husband  and  Wife, 

When  competent  witnesses  for  or  against  each  other,  175,  180. 

When  felony  by  wife  is  presumed  to  have  been  committed  under 
control  of  husband,  428. 

Communications  between,  privileged  from  disclosure,  180,  586. 

Sexual  intercourse  between,  testimony  of,  not  receivable  to  dis- 
prove, 586. 


Identity,  Evidence  of, 

Liability  to  mistakes  in,  95. 
Idiocy, 

Presumed  in  person  deaf  and  dumb  from  birth,  148. 
A  ground  of  incompetency,  148. 
Presumption  against,  314,  332. 
ignorance  of  Law, 

Kb  excuse  for  violation  of,  45. 
Presumption  against,  45. 
Illegality, 

Presumption  against,  314,  346. 
Illegitimacy, 

Presumption  against,  314,  349. 
How  rebutted,  314,  349. 
Declarations  of   deceased   persons,  not   admissible  to  prove,  498, 
n.  (b). 
Immaterial  Averments  and  Statements, 
Need  not  be  proved,  279. 

unless  they  affect  what  is  material,  280. 
Immaturity  of  Intellect, 

A  ground  of  incompetency,  151. 
Immorality, 

Presumption  against,  349. 
Impossibility,  a  test  of  the  value  of  testimony, 
Physical,  24. 
Moral,  24. 

Different  notions,  respecting,  25. 
Fiction  of  law  must  not  involve,  313. 


1232  INDEX.  I  The  references  at* 

Impossibility  of  Performance, 
Avoids  judgments,  591. 
awards,  591. 
Impossible  Offenses, 

Confessions  of.  572. 
Improbability,  a  test  of  the  value  of  testimony,  24. 
Inaccuracy  of  language  in  -written  instruments, 

Not  to  be  confounded  with  ambiguity,  226. 
Incompetency.      See  Witness. 
Incompleteness  in  testimony, 

More  frequent  than  fabrication,  26. 

An  affirmative  hypothesis  affecting  extrajudicial  confessions,  578. 
Inconsistency, 

Avoids  judgments,  591. 
verdicts,  591. 
awards,  591. 
Inconsistent  statements  by  witnesses, 

Cross-examination  as  to,  644. 
Incumbent,  Deceased, 

Books  of,  when  evidence  for  successor  504. 
Indicative  Evidence, 

Meaning  of   98. 

Uses  of,  93. 
Indirect  Evidence, 

What,  27,  294. 

May  be  conclusive  or  presumptive,  27,  294. 
Indistinctness, 

A  resource  of  evasive  witnesses,  657. 
Inducement  to  confess, 

Confession  made  in  consequence  of,  not  receivable,  548. 

Nature  of  inducement  which  will  have  this  effect,  548. 
Induction, 

Presumed  from  possession,  393 
infamy, 

Incompetency  from,  151. 
Abolished,  141. 
Infants, 

Capacity  of,  as  witnesses,  151. 

OIJ  law,  152. 

Gradual  changes  in,  153. 

Modern  law,  154. 

Dying  declarations  of,  157. 

Evi Jence  of,  effect  of,  158. 

Capacity  of  to  commit  crime,  306,  314. 
Infirmative  Facts  or  Hypothe-es,  what  are,  199. 
Infirmative  Hypotheses  Affecting  self-criminative  Evidence,  554. 


to  the  Sections.]  INDEX.  1 233 

Infirmative  Hypotheses — continued. 

False  self-criminative  statements,  550. 
Two  classes  of,  560. 

1.  Those  resulting  from  mistake,  561,  562. 

2.  Those  resulting  from  expectation  of  benefit,  563,  564. 
Infirmative  Hypotheses  in  extra-judicial  Confessorial  Statements,  573. 

1.  Mendacity.  573. 

2.  Misinterpretation,  573. 

3.  Incompleteness,  573. 

Non-responsion,    574. 
Evasive  responsion,  575. 
False  responsion,  576. 
Injuring  Others,  desire  of, 

A  cause  of  false  confessions,  571 
Innkeepers, 

Presumptions  affecting,  430. 
Innocence, 

Presumption  of,  favored  in  law,  334. 

extent  of  this  presumption,  459,  460. 
will  not   be  made  when  a  stronger  presumption  ii 
raised  against  it,  346. 
Sanity  presumed  in  preference  to,  434. 
Inquisitorial  Principle, 

Dominant  in  civil  and  canon  law,  555. 
Insanity, 

Incompetency  of  witness  from,  147,  150. 
Presumption  against,  314,  332,  433. 
Continuance  of,  presumed,  if  once  shown  to  exist,  406. 
Inspection, 

Real  evidence  afforded  by,  197. 

Of  documents  in  the  custody  or  under  the  control  of  the  opposite 

party,  624. 
Of  real  or  personal  property,  625. 
In  the  Court  of  Admiralty,  625. 
Under  the  patent  law,  626. 
Instruments  of  Evidence, 
Three  kinds  of,  123. 

Witnesses.     See  Witness. 
Real  evidence.     See  Real  Evidence. 
Documents.     See  Documents. 
Instruments,  Written, 

Distinguished  from  documents,  217,  475. 
Different  kinds  of, 
Public,  219. 
Private,  220. 

1.  Under  seal,  220. 
T8 


1234 


INDEX.  [  The  rejerences  an 


Instruments,  Written — continued. 
2.  Not  under  seal,  221. 
Extrinsic  evidence,  when  admissible  to  contradict,  vary,  oi  explain, 

226. 
Presumption  from  eloigning,  suppressing,  defacing,  destroying,  or 
fabricating,  412. 
Intellect, 

Incompetency  from  deficiency  of,  146,  150. 
immaturity  of,  151,  158. 
Not  presumed,  338. 
Intendments  of  Law.     See  Presumptions. 

Intent, 

Questions  of,  more  important  in  criminal  than  in  civil  proceedings, 

96. 
Evidence  to  prove,  255. 
Intent,  Criminal, 

Presumed  from  acts,  433. 
Intention  to  commit  Offense, 

Presumption  of  guilt  from  declaration  of,  458. 
Interest, 

Incompetency  from,  old  law  as  to,  137,  138,  167. 
Observations  on,  138,  140. 
Alterations  in,  by  statute,  143,  167,  183. 
Declarations  by  deceased  persons  against,  500. 
Interlineations  in  Documents, 

Effect  of,  229. 
International  Law, 

Public,  adopted  by  the  common  law,  417. 
Presumptions  in,  416. 
Interpreter, 

Person  who  is  deaf  and  dumb,  may  be  called  upon  to  plead  by, 

521. 
Communications  to,  privileged  from  disclosure,  581. 
Interrogation,  Judicial, 
Of  accused  persons, 

Allowed  in  the  civil  law,  555. 
Arguments  in  favor  of,  556. 
against.  557. 
Interrogatories, 

Examination  of  witnesses  on,  101,  105. 
Exhibiting,  to  parties  before  trial,  627. 
Cases  in  which  party  not  bound  to  answer,  628. 
'ntoxication, 

A  ground  of  incompetency,  133. 
Self'-di&serving  statements  during  529. 
Investigation  of  facts  by  judicial  tribunals,  3. 


to  the  Sections.]  INDEX.  123$ 

Investitive  Rules  of  Evidence, 

What,  34. 
Irrebuttable  Presumptions.     See  PRESUMPTIONS. 
Irregularity, 

Presumption  against,  360. 
Irrelevancy  of  evidence, 

Grounds  of,  252. 

Rules  for  determining,  264. 
Irreligion, 

Presumption  against,  351. 
Irresponsible  Agency, 

An  infirmative  hypothesis  affecting  real  evidence,  202. 

Presumptive  evidence  receivable  to  negative  hypothesis   that  fact* 
proved  were  the  result  of,  447. 
Issue, 

Evidence  must  be  solely  directed  to  matters  in,  111,  251. 

Sufficient  to  prove  substance  of,  111,  278. 
Issue,  Collateral, 

Evidence  tending  to  raise,  must  be  rejected,  644. 


Jews, 

How  sworn,  163. 
•Tudite  at  Trial,  * 

Can  not  be  challenged,  82. 

Charged  with  the  general  conduct  of  the  proceedings,  82. 

Decides  all  questions  of  law  and  practice,  82. 

Determines  on  whom  the  burden  of  proof  lies,  82. 

Determines  on  the  admission  and  rejection  of  evidence,  82. 

Sums  up  the  case  to  the  jury,  82. 

Determines  whether  there  is  any  evidence  for  the  jury,  82. 

Decides  facts  on  which  admissibility  of  evidence  depends,  82, 
Errors  of,  how  corrected,  82. 

Has  a  discretion  with  respect  to  the  rules  of  forensic  proof,  86,  116, 
623. 

But  is  bound  by  the  rules  of  evidence,  86,  116,  623. 
When  he  may  be  a  witness,  188. 
May  put  questions  to  witnesses,  631. 

inspect  media  of  proof,  631. 
In  what  sense  counsel  for  accused  persons,  632. 
Judge's  Notes,  not  evidence,  223. 
Judgments, 

Presumed  to  be  given  in  invitum,  428. 

When  conclusive,  589. 

May  be  null  in  respect  of  what  is  contained  in  them,  591. 

Cases  in  which  the  maxim  "Res  judicata,"  &c,  applies,  598. 


j  2  3  6  INDEX.  [  The  references  an 

Judgments — con  tin  ued. 

To  operate  as  estoppels,  must  be  pleaded  if  there  be  an  opportunity, 

594 
May  be  impeached  for  fraud,  595. 
Judgments  In  Rem,  bind  all  the  world,  593. 
Judicial  Acts, 

Presumptions  in  favor  of,  3G0. 
Vitilated  by  fraud,  227,  595. 
Judicial  Confession,  548. 

Judicial  Evidence.     See  EVIDENCE,  JUDICIAL. 
Judicial  Interrogation, 

Allowed  by  civil  law,  555. 
Arguments  in  favor  of,  556. 
against,  557. 
Judicial  Matters, 

Privileged  from  disclosure  on  grounds  of  public  policy,  578. 
Judicial  Notice, 

Of  what  matters  courts  take,  253. 
Judicial  Part  of  Record,  differs  from  the  substantive,  590. 
Judicial  Writings, 

What  are,  218. 
Jurisdiction,  of  inferior  tribunals, 

Effect  of  the  maxim  "  Omnia  prsesumuntur,"  &c.  upon,  360. 
Juror,  * 

May  be  a  witness,  187. 

Evidence  of,  not  receivable  to  impeach  verdict,  580. 
Jury, 

May  be  challenged,  82. 
Determine  facts,  82. 

and  law  so  far  as  finding  general  verdict,  82. 
May  find  special  verdict,  82. 

Can  not  find  verdict  on  their  personal  knowledge,  88,  187 
May  apply  their  general  knowledge  for  that  purpose,  187. 
May  put  questions  to  witnesses,  631. 
And  inspect  media  of  proof,  631. 
Were  formerly  witnesses  of  facts,  119. 
Gradual  change  in  their  functions,  119. 
Bound  by  law,  as  laid  down  by  judge,  82. 

and  by  the  rules  of  evidence, 
116. 
New  trial  granted  for  misconduct  or  mistake  of,  82. 

for  disregard  by,  of  presumptions  of  law,  304. 

of  fact  or  mixed 
presumptions, 
327. 
Direction  to^  as  to  presumptions  of  fact  and  mixed  presumptions,  326 


to  the  Sections]  INDEX.  1 2 37 

Jury — con  United. 

Belief  of,  in  facts  presumed  in  support  of  beneficial  enjoyment, 
399. 
Justice,  divided  into, 

Expletive,  36. 

Attributive,  36. 
Justice  of  the  Peace, 

Appointment  of,  presumed  from  actrf,  356. 

Presumptions  in  support  of  orders  of,  359. 

Does  not  extend  to  give  jurisdiction,  361. 

Keeper  of  Records, 

May  give  evidence  of  their  condition,  but  not  of  their  contents,  22& 
Knowledge, 

Three  kinds  of — intuitive,  demonstrative,  sensitive,  6. 

Sometimes  synonymous  with  belief,  6. 
Knowledge,  Presumptions  of,  400. 

Lake,  Property  in  Soil  of.  presumption  as  to,  426. 
Lands,  Power  in  Charities  to  Sell,  when  presumed,  393. 
Larceny, 

Presumption  of,  from  possession  of  stolen  property,  211. 
Law, 

Definitions  of,  1. 

Connection  between,  and  facts,  1. 
Presumption  against  ignorance  of,  45,  336. 
Law,  Mistake  of, 

Self-disserving  statements  made  under,  effect  of,  530. 
Law,  Municipal, 

Origin  of,  37. 
Law  of  Evidence.     See  EvrDENCE,  English  Law  of. 
Laws,  Foreign, 

Must  be  proved  as  facts,  33. 
How  far  adopted  by  the  common  law,  420. 
How  proved,  513. 

22  &  23  Vict.  c.  63,  and  24  Vict.  c.  11,  enabling  our  courts  to  obtain 
opinions  of  foreign  courts  on  questions  of,  515,  n.  (w). 
Leading  Questions, 

General  rule — on  material  points  are  allowed  on  cross-examination, 
but  not  on  examination-in-chief,  641. 
Reasons  for  this,  041. 
What  are  leading  questions,  641. 

In  practice,  leading  questions  often  pass  without  objection,  641. 
Unfounded  objections  constantly  taken  on  this  ground,  641. 
Exceptions, 

1.  Identification  of  persons  or  things,  G42. 

2.  Contradiction  of  former  witness,  G42. 


I238  INDEX.  \  The  references  or* 

Leading  Questions—  continued. 

3.  Witness  hostile  to  the  party  by  whom  he  was  called,  642. 

4.  Defective  memory,  642. 

5.  Complicated  subject-matter,  642. 
Expediency  of  leading  when  allowable,  643. 

Legal  Memory, 

Time  of,  370. 
Legal  Presumptions,  object  of,  42. 

Difference  between,  and  presumptions  of  fact  and  mixed  presump- 
tions, 304. 
Legitimacy, 

Presumption  of,  314,  349. 

how  rebutted,  314,  349. 
Letter, 

Presumption  of  date  of,  402. 

Put  into  post,  presumed  to  have  reached  its  destination,  403. 

Not  properly  a  written  instrument,  475. 
Letters  Patent, 

May  be  presumed,  in  support  of  possession,  393. 

Action  for  infringement  of,  inspection  in,  625. 
Licenses, 

Presumption  of,  391. 
Lite, 

No  prcesumptio  juris  relative  to  its  duration,  408. 
Life,  Presumption  of  Continuance  of, 

When  it  ceases,  409. 
Limit  to  number  of  witnesses, 

Absurdity  of  laws  attempting  to  fix,  48. 
Lis  mota, 

What,  49S. 
Living  Memory, 

Distinguished  from  legal,  370. 
Living  Proofs, 

Distinguished  from  dead,  216. 
Loan  by  parent  to  ohild, 

Presumption  against,  341. 
Log-Books  of  merchant  vessels, 

Admissibility  of,  in  evidence,  118,  n.  (p). 
Lost  Document, 

Presumed  to  have  been  duly  stamped,  230. 

Secondary  evidence  of,  may  be  given,  482. 
Lost  Grant, 

Title  by,  377-381. 
Lunatic, 

Competency  of,  to  give  evidence,  147-150. 

Self-disserving  statements  by,  529. 


to  the  Sections]  INDEX.  12  39 

Magistrates,  Jurisdiction  of, 

Not  enlarged  by  the  maxim  "Omnia  prsesumuntur,"  &c,  361. 
Malice, 

Presumption  of,  from  certain  acts,  433. 
Malitia  supplet  iEtatem,  314. 
Mandamus, 

To  examine  witness,  101-102. 
Manors, 

Presumptions  affecting,  426. 
Maritime  Law, 

Presumptions  in,  423. 
Mark, 

Instead  of  writing,  proof  of,  234. 
Marriage, 

Presumption  of,  from  cohabitation  and  reputation,  349. 

Consummation  of — presumed,  400. 
Marriage,  Foreign, 

Presumption  in  favor  of  regularity  of,  422. 
Marriage,  Promise  of,  action  for  breach  of, 

Parties  competent  witnesses  in,  180. 

Corroborative  evidence  required  in,  621. 
Marriage  Registers, 

Proof  of,  487. 
Married  Woman, 

When  presumed  to  act  under  control  of  husband  in  committing 
felony,  428. 
Marry,  promise  to, 

Presumption  respecting  time  of  performance,  400. 
Master  in  Chancery, 

Appointment  of,  may  be  presumed,  356. 
Matter  in  Pais, 

Estoppel  by,  543. 
Matter  of  Record, 

Estoppel  by,  539. 
Means  of  committing  Offense, 

Presumption  of  guilt  from,  453» 
Media  of  proof, 

The  exacting  a  certain  number  of,  may  guard  against  misdecision, 
65. 

Evils  of,  65. 

Practice  of  civilians  and  canonists,  66. 
Medical  Men, 

Communications  to,  not  privileged  from  disclosure,  582. 
Memoranda, 

To  refresh  the  memory  of  witnesses,  when  admissible,  224 
Memorials  of  documents, 

Secondary  evidence,  472. 


\ 


1 240  INDEX.  [  The  references  are 

Memory, 

Memoranda  to  refresh,  when  admissible,  224. 

Legal  time  of,  370. 

Liviug,  distinguished  from  legal,  370. 
Menace, 

Instruments  obtained  by,  void,  227. 
Mendacity, 

An  infirmative  hypothesis  applicable  to  extrajudicial  confessions, 
573. 
Mesne  Assignments, 

May  be  presumed,  395. 
Military  Duty, 

False  confessions  to  escape,  509. 
Misconduct, 

Presumption  against,  345. 
Misdemeanor, 

New  trial  grantable  in  cases  of,  G48. 
Misinterpretation, 

An  infirmative  hypothesis  applicable  to   extrajudicial  confessiona, 
573. 
Misprision  of  Treason, 

Number  of  witnesses  required  on  trial  for,  615. 
Misrepresentation, 

More  frequent  form  of  falsehood  than  fabrication,  26. 
Missing  Ship, 

Presumption  of  loss  of,  424. 
Mistake, 

Effect  of  self-disserving  statements  made  through, 
Of  fact,  530. 
Of  law,  530. 
Mixed  Presumptions,  324 
Models, 

Real  evidence  afforded  by,  279. 
Modern  User, 

Evidence  of  prescriptive  right,  373. 
Modus  Decimandi, 

Presumption  of,  evidence  to  support,  373. 

Evidence  of,  under  2  &  3  Will  4,  c.  100,  336. 
Mohammedan  Law, 

As  to  witnesses  in  certain  cases,  63,  66. 
Mohammedan  Witness, 

How  sworn,  163. 
Monomaniac,  Evidence  of, 

Admissibility  of,  148. 
Moral  Certainty, 

Synonymous  with  knowledge,  6. 

Required  to  justify  conviction  in  criminal  cases,  95,  440. 


to  the  Sections.]  INDEX.  1^4* 

Moral  Sanction  of  Truth;  observations  on,  17. 
Moravians. 

Affirmation  of,  receivable,  166. 
Mortgage  Term, 

Surrender  of,  -when  presumed,  407. 
Mosaic  Law, 

Relating  to  the  testimony  of  women,  64,  596,  n. 
to  a  plurality  of  witnesses,  66,  597. 
Motives  to  commit  Offense, 

Presumption  of  guilt  from,  453. 
Municipal  Law, 

Origin  of,  37. 
Muniments  of  Title, 

Privilege  of  not  producing,  216. 

No  answer  to  application  for  discovery,  625. 

Party  not  bound  to  answer  interrogatories  as  to  contents  of,  628. 

Nations,  comity  among, 

Presumption  of,  420. 
Natural  Presumptions,  what,  303. 
Natural  Sanction  of  Truth,  16. 
Nature,  Course  of, 

Judicially  noticed,  253. 

Presumptions  derived  from,  stronger  than  casual  presumptions,  338. 
Two  kinds  of, 

Physical,  338. 
Moral,  341. 
Necessary  inferences,  from  circumstantial  evidence, 

Cases  of,  200. 
Negative  Averments,  differ  from  negatives,  271. 
Negative  Facts, 
What  are,  13. 

Burden  of  proof  of,  dqjends  on  substance  of  issue,  272. 
Negative  Fictions, 
What  arc,  313. 
Neglect  of  Duty, 

Presumption  against,  348. 
Nets, 

Right  to  land,  when  presumed,  393. 
New  Trial, 

In  civil  cases, 

For  error  of  judge,  82,  304,  647. 

For  mistake  or  misconduct  of  jury,  82,  304,  327. 

On  the  ground  of  surprise,  82. 

Not  grantable  for  ruling  that  stamp  is  sufficient  or  not  required, 

231. 
For  disregard  by  jury  of  presumptions  of  law,  304. 


1 242  INDEX.  [  The  references  an 

New  Trial — continued. 

Of  fact,  or  mixed  presumptions,  327. 

Proceeding  for,  adopted  in  preference  to  tendering  bill  of  ex 
ceptions,  047. 

In  criminal  cases,  648. 
Niefty, 

Doubtful,  if  provable  by  one  witness,  614. 
Nomenclature  of  the  English  Law  of  Evidence, 

Objectionable  in  some  respects,  122. 
Non  compos  Mentis, 

Not  a  competent  witness,  148. 

Self-disserving  statements  made  by  person  who  is,  529. 
Non-Existing  Grant, 

Pleading  title  by,  377. 

Evidence  in  support  of,  377. 
Non-observance  of  prescribed  forms  for  pre-appointed  Evidence, 

Effect  of,  61. 
Non-responsion, 

Presumption  of  guilt  from,  574. 
Non-user, 

Presumption  of  surrender  or  extinguishment  from,  388. 
Notes  of  Judge, 

Not  evidence,  223. 
Notice  to  produce, 

Necessary  to  let  in  secondary  evidence,  216. 

Under  what  circumstances  it  may  be  dispensed  with,  482. 

Object  of,  482. 

If  a  document  be  in  court,  it  inaj  be  called  for  without  giving,  482. 
Notorious,  Matters  deemed, 

Need  not  be  proved,  252,  253,  254. 

May  be  referred  to  by  counsel  or  party,  640. 
Nul  Tiel  Record,  Plea  of, 

Original  must  be  produced  in  support  of  issue  on,  486. 
Number  of  Witnesses.    See  Quantity  of  Evidence. 

Oaths, 

Antiquity  and  general  use  of,  56. 

Nature  of,  57,  59. 

Utility  of,  observations  011,  59. 

Abuses  of,  59. 

Voluntary,  prohibited  by  law,  59. 

Grounds  of  incompetency,  to  take,  134,  137,  145. 

Forms  of,  in  English  law,  162. 

Modes  of  taking,  16o. 

Perverse  refusal  to  take,  a  contempt  of  court,  166. 

Persons  excused  by  law  from  taking,  166. 

Forms  of  affirmation  substituted  for,  166. 


to  the  Sections. \  INDEX.  1 243 

Obligations, 

Presumption  of  contra  ?.nce  of,  406 
Occupation, 

Prima  facie  evidence  of  property,  366. 
Allegation  of  seizin  implies,  427. 
Offenses, 

Division  of,  into  Delicta  facti  transeuntis  and  Delicta  facti  perm*- 
nentis,  541. 
Office,  course  of  business  in, 
Presumptions  from,  403. 
Public,  403. 
Private,  403. 
Office  Copies,  wbat,  486. 
Officers  of  Justice, 

Tampering  with,  presumption  of  guilt  from,  460. 
Official  Acts, 

Presumptions  in  favor  of,  359. 
Official  Appointments, 

Presumptions  in  favor  of,  356. 
Official  pre-appointed  Evidence,  not  sufficient  attention  paid  to,  121. 
Omnia  praesumuntur  esse  rite  acta, 
Importance  of  this  maxim,  353. 
General  view  of,  354. 
Does  not  apply  to  give  jurisdiction,  361. 
Instances  of  the  application  of,  355,  3(54. 
Onomastic  Signature, 

What,  232. 
Onus  Probandi.     See  BuRDEff  of  Proof 
Opinion  Evidence, 

Not  in  general  receivable,  112,  511. 

Meaning  of  this  rule,  512. 
Exceptions, 

Evidence  of  "  Experts  "  on  questions  of  science,  skill,  &c,  513. 
Value  of,  514. 
French  law,  515. 
Scientific  evidence  received  with  too  little  discrimination, 

516. 
Opinions  founded  on  complex  facts  which  can  not  easily 
be  brought  before  the  tribunal,  517. 
Opportunies  of  committing  Offense, 
Presumption  of  guilt  from,  453. 

Oral  Evidence, 

Distinguished  from  parol,  223,  n.  (a). 
Ordeal, 

Trial  by,  observations  on,  42. 
Ordering  Witnesses  out  of  Court,  036. 
Order  of  Beginning,  or,  Ordo  Incipiendi.     See  Beginning,  Order  of. 


1 244  INDEX.  [  The  ref'wtces  art 

Ordinary, 

Evidence  required  to  raise  presumption  of  right  10  pew  as  against 
382. 

Consent  of,  to  composition  deeds  presumed,  393. 
Ordinary  Conduct  of  mankind, 

Presumptions  from,  400. 
Original  Evidence, 

Distinguished  from  derivative,  29. 

Exaction  of,  a  branch  of  the  rule  requiring  the  best  evidence.  89.. 
A  marked  feature  of  English  law,  472. 
Ouster, 

Presumption  against,  350. 
Overseer, 

Appointment  of,  may  be  presumed,  356. 

Pais,  Matter  in,  estoppel  by,  543. 
Parent, 

Money  advanced  to  child  by,  presumed  to  be  a  gift,  341. 
Parliament, 

Act  of,  may  be  presumed  in  favor  of  possession,  392. 
Presumption  of  having  sat  in,  393. 
Parol  Contract, 

Meaning  of  term,  223,  n.  (a). 
Parol  Evidence, 

No  degree  of,  87. 

In  what  sense  inferior  to  written,  523. 
Not  synonymous  witli  oral,  223,  n.  (a). 

Not  in  general  admissible  to  contradict,  vary,  or  explain  written 
instruments,  226. 
Exceptions,  22G. 
Parsee  Witness, 

How  sworn,  103. 
Parties  to  Suit  or  Proceeding, 

General  rule  of  old  law — not  competent  witnesses,  168. 
Exceptions, 

At  common  law,  169. 
Prosecutors,  1G9. 
Approvers  and  accomplices,  170. 
Issues  from  Chancery,  172. 
Orders  of  reference,  172. 
By  statute,  173. 
In  revenue  prosecutions,  181. 
In  Divorce  Court,  182. 
Husbands  and  wives  of,  when  admissible,  175,  180. 
Evidence,  to  character  of, 
General  rule— not  receivable.  257. 
1,  258. 


to  the  Sections]  INDEX.  1 245 

Parties  to  Suit  or  Proceeding— continued. 

Admissions  by,  whole  of  must  be  taken  together,  520. 
Exhibiting  interrogatories  to,  before  trial,  C27. 
Addresses  of,  at  trial,  bow  regulated,  631. 
Partners, 

Presumed  to  be  interested  in  equal  moieties,  404. 
Party-Wall, 

Presumption  as  to  property  in  land  on  which  it  is  built,  426. 
Patent,  Letters, 

May  be  presumed  in  favor  of  possession,  393. 
Inspection  in  action  on,  626. 
Payment, 

When  presumed,  406. 

Receipt  under  sec,.,  conclusive  evidence  of,  306,  406. 
Not  under  seal,  only  prima  facie  evidence  of,  406. 
In  the  absence  of  evidence  of,  debt  generally  presumed  to  continue 
406. 
Psace  Officer,  appointment  of,  may  be  presumed,   356. 
Pecuniary  Interest, 

In  cause,  goes  to  credit  of  witness,  191. 
Presumption  of  homicide  from,  319. 
Declarations  against,  admissible,  500. 
Pedigree, 

Derivative  evidence  receivable  to  prove  matters  of,  498. 
Penalty,  questions  tending  to  expose  to, 

Witnesses  not  bound  to  answer,  126,  129,  628. 
Nor  to  produce  documents.  216. 
Nor  to  answer  interrogatories,  628. 
Perjury, 

What,  55. 

Punishment  for,  55. 

False  affirmation  or  declaration  punishable  as,  166. 

Finding  of  the  jury,  in  accordance  with  the  evidence  given  by  the 

accused,  no  defense  to  indictment  for,  595. 
How  proved, 

Must  be  at  least  two  witnesses  or  proofs,  604. 
Reason  usually  assigned  for  this,  605. 
True  reason,  606. 

Amount  of  evidence  required  from  each  witness,  or  pioof, 
606. 
Perpetuating  Testimony, 

Means  of,  in  our  law,  121. 
Personal  Attendance  at  Trial. 
Enforced  by  law,  125. 

Exceptions  to  this  rule,  101 
Personal  Evidence, 
What,  28. 


1 246  INDEX.  [  The  references  are 

Personal  Injury, 

Husband  and  wife  competent  witnesses  at  common  law  against 
each  other  in  charges  of,  176. 
Personal  Knowledge, 

Tribunals  must  not  act  on,  38,  88,  187. 
Perverse  Verdict, 

What,  82. 
Petty  Jurors, 

Proceedings  of,  privileged  from  disclosure,  382. 
Pews,  Right  to, 

Possessory  or  absolute,  382. 

May  be  claimed  by  prescription,  382. 

Such  claim,  how  rebutted,  382. 
Evidence  required  to  raise  presumption  of  right  to,  as  against  the 
ordinary,  382. 
Philosophical  Evidence, 

Mistakes  from  confounding  it  with  legal  evidence,  53. 
Photograph  Copy, 

Admissible,  480. 
Physical  Coincidences  and  dissimilarities,  effect  of,  201. 
Physical  Facts,  distinguished  from  psychological,  12. 

Impossibility  a  test  of  truth,  24,  654. 
Physiognomy, 

Not  legal  evidence  against  a  party,  91. 
Pleading, 

Estoppel  by,  540. 

in  criminal  cases,  548. 
Pleadings, 

Evidence  excluded  by  state  of,  252. 
Burden  of  proof,  prima  facie  determined  by,  267. 
Immaterial  averments  in,  may  be  disregarded,  279. 
Amendment  of,  at  trial,  285. 
Plenary  Confessions.    See  Self-regarding  Evidence. 
Plurality  of  Witnesses.     See  Quantity  op  Evidence. 
Poison,  Death  from, 

Proof  of  corpus  delicti  in  cases  of,  448. 
Physical  evidence  of,  448. 
Moral,  448. 
Chemical  tests  of,  448. 
Political  Matters,    privileged   from   disclosure   on   grounds   of    public 

policy,  578. 
Political  Sanction  of  Truth, 

What,  55. 
Popular,  or  Moral,  Sanction  of  Truth, 

What,  17. 
Possession, 

Presumption  of  right  from,  43. 


to  t*e  Sections.]  INDEX.  1 247 

Possession — continued. 

Highly  favored  in  jurisprudence,  366. 

Possession,  prima  facie  evidence  of  property,  366. 

Possession,  or  perception  of  profits,  of  real  estate,  prima  facie 

evidence  of  estate  in  fee,  366. 
Presumption  strengthened  by  length  of  enjoyment,  366. 
1.  Presumption  from  long  user  of  rights  to  certain  things  which 
lie  in  grant,  368. 
Prescription,  title  by,  368. 

Can  not  in  general  be  made,  except  to  things  which  lie  in 

grant,  368. 
Semble,  could  not  at  the  common  law  be  made  against 

crown,   368. 
Difference  between  custom  and  prescription,  369. 
Mode  of  pleading  prescription  at  common  law,  369. 
Requisites  of  a  prescriptive  right, 
At  common  law,  370. 
Stat.  West.  I.  (3  Edw.  1).  c.  39.  370. 
Legal  and  living  memory,  470. 
32  Hen.  8,  c.  2,  and  21  Jac.  1,  c.  16,  371. 
Title  may  be  lost  by  interruption,  372. 
Evidence  of  prescriptive  right  from  modern  user,  373. 
What  length  of  user  necessary,  373. 
Prescriptive  claim  not  defeated  by  trifling  variations 

in  exercise  of  the  right,  374. 
Effect  of  evidence  of  user  where  it  is  not  sufficient  to 

raise  presumption  of  prescriptive  right,  375. 
Presumption    of   prescriptive    right  from    enjoyment, 
how  to  put  an  end  to,  376. 
Title  by  non-existing  grant,  377. 

Twenty  years'  uninterrupted  enjoyment,   cogent  evidence 
of  a  grant,  377. 

Possession   must   have  been    acquiesced   in  by  owner 
of  the  inheritance.  379. 

This  may   be    proved  directly   or  inferred   from 
circumstances,  379. 
Presumption  only  conclusive  when  evidence  of   enjoy- 
ment uncontradicted  and  unexplained,  3S0. 
Presumption  of  grant  from  the  crown,  length  of  timo 

required  to  support,  381. 
Presumption  in  derogation  of  the  rights  of  the  public, 
381. 
Rule  in  the  case  of  pews,  382. 
Inconveniences  of  the  old  law,  383. 
Statutes  passed  to  remedy  them, 
2  &  3  Will.  4,  c.  71,  383. 


1 248  INDEX.  The  references  an 

P  ossession — con  tin  ued. 

Construction  of,  385. 

Earlier  sections  do   not  take  away  the  common 

law,  385. 
Meaning  of  "  suit  or  action"  in  sect.  4,  385. 
Meaning  of  ''presumption  "  in  sect.  6,  385. 
Statute  does  not  apply  to  claims  in  gross,  385. 
Discrepancy  between  2nd  and  8th  sections,  385. 
2  &  3  Will.  4,  c.  100,  386. 
The  common  law  not  taken  away  by,  386. 
2.  Incorporeal  rights  not  affected  by  2  &  3  Will.  4,  cc.  71  and  100, 
387. 
Possession,  Ancient,  proof  of,  by  ancient  documents,  499. 
Possession,  of  stolen  Property,  Presumption  of  Guilt  from, 
Sometimes  shifts  the  burden  of  proof,  212. 
Possession  must  be  recent,  212. 

exclusive,  211. 
Carried  too  far  in  practice,  213. 
Explanation  of  possession  by  the  accused,  214. 
Post,  letter  put  into,  presumed  to  have  reached  destination,  403. 
Post  Office, 

Presumption  as  to  appointments  in.  356. 
Practice,  Forensic,  respecting  evidence, 

Rules  of  known  to  our  ancient  lawyers,  113. 
Less  inflexible  than  the  rules  of  evidence,  86,  116. 
Proceedings  previous  to  trial,  623. 

Inspection  of  documents  in  the  custody  or  under  the  control  of 

the  opposite  party,  624. 
At  common  law,  624. 
I  14  &  15  Vict.  c.  99,  s.  6,  624. 

Discovery,  &c,  of  documents  in  the  possession  ov  power  of  the 

opposite  party,  625. 
Inspection  of  real  or  personal  property,  625a. 
Inspection  in  the  Court  of  Admiralty,  625b. 
Inspection  under  patent  law,  626. 
Exhibiting  interrogatories  to  a  party  in  the  cause,  627. 
Admissions  before  trials,  630. 
Course  of  trial,  631. 
Principal  incidents  of,  636. 

Ordering  witnesses  out  of  court,  636. 
Order  of  beginning,  637. 

Rule  against  stating  facts  without  offering  evidence  of  them,  640. 
Matters  of  history,  640. 

Practice  respecting  "Leading  Questions,"  641,  642. 
Discrediting  adversary's  witnesses,  644. 
party's  own  witnesses,  645. 


to  the  Sections  \  INDEX.  1 249 

Practice,  Forencic — continued. 

Adjournment  of  trial,  646. 

Ways  of  questioning  the  ruling  of  a  tribunal  on  evidence,  647. 
Pre-appointed  or  pre-constitued  Evidence, 

What,  81. 

Prescribed  forms  of,  60. 

Consequence  of  non-observance  of,  61. 

In  English  law  sufficient  attention  not  paid  to  official   121. 

Principle  of  incompetency  ought  to  be  confined  to,  i44. 
Prejudice;  Communications  made  without, 

Not  receivable  in  evidence,  528. 
Preparations  for  the  Commission  of  an  Offense, 

Presumption  of  guilt  from,  454. 
Prescription, 

What,  43,  368. 

Title  by,  restricted  to  things  which  lie  in  grant,  368. 

Requisites  of  right  founded  by,  370. 

Evidence  of,  from  modern  user,  373. 

Act  for  shortening  the  time  of,  384. 

Construction  of,  385. 

Rights  not  affected  by,  387.' 
Prescriptive  Claim, 

Not  defeated  by  trifling  variations  in  exercise  of  right,  874. 
Prescriptive  Right, 

Requisites  of,  370. 

Presumption  of,  how  rebutted,  376. 

What  possession  requisite  to  raise,  379. 

Against  the  crown,  381. 
or  public,  381. 
Press,  Public, 

Misconduct  of,  463. 
Presumption, 

Original  signification  of,   299. 

Legal  signification  of,  299. 

Different  meanings  of,  300. 

Confusion  arising  from,  300. 
Presumption  cf  Conveyances  by  Trustees, 
General  rule,  394. 

Presumption   should  be  in   favor   of  the    owner  of    the  inherit- 
ance, 394. 

Presumption   can  not  be  made,    where   it  would  be   a  breach  of 
trust  in  the  trustees  to  make  the  conveyance,  394. 
Presumption  of  Dedication  of  Highway  to  the  Public,  387. 

From  permissive  user,  387. 

Intention  of  owner  must  be  considered,  387. 

Must  be  with  consent  of  owner  of  the  fee,  387. 
79 


1 2  50  INDEX.  \  The  references  art 

Presumption  of  Dedication — continued. 
Consent  may  be  inferred,  387. 
Public  favored,  387. 
Presumption  of  Facts  in  support  of  beneficial  Enjoyment,  392. 
General  principle,  392. 
Instances,  393. 
Presumption  of  Grant  of  Licences,  391. 

Presumption  of  Surrender  or  Extinguishment  of  Easement  by  Non- 
user,  389. 

Continuous,  389. 
Intermittent,  390. 
Presumption    of   the    Surrender    of    Terms    by    Trustees    for  Years, 
395. 
Old  law,  305. 
Surrender  of  term  presumable  from  circumstances,  396. 

But  uot  merely  from  the  fact  of  the  term  being  satisfied,  396. 
Surrender  of  term  when  presumable  from  acts  of  the  owner  of  the 
inheritance,  397. 

Attendant  term,  397. 
Non-attendant  term,  397. 
8  &  9  Vict.  c.  112,  398. 
Presumptions, 

Necessity  for,  42. 
Abuse  of,  46. 
Kinds  of,  303. 

Presumptions,    or  intendments,  of    law — Prsesumptiones   set* 
positiones  juris,  304. 

How  differing  from  other  presumptions,  304. 
Grounds  of,  305. 
Kinds  of,  306, 

Irrebuttable,  or  conclusive — Prsesumptiones    juris  et 
de  jure,  306. 
Number  of,  307. 
Use  of,  308. 
Rebuttable,  conditional  or  inconclusive  presumptions 
— Praesumptiones  juris  tantum,  306,  314. 
Presumptions  of  fact,  or  natural  presumptions — Prsesumptiones 
hominis,  315. 

Grounds  and  sources  of,   316. 

Probative  force  of,  317. 

Division  of,  into  violent,  probable,  and  light,  317. 

Doubtful  utility  of,  318. 
Division  of,  with  reference  to  burden  of  proof, 
Slight,  319. 

Do  not  constitute  proof,  or  shift   the  burden  oi 
proof,  319. 


to  the  Sections.]  INDEX. 


125 1 


Presumptions — continued. 

Use  and  effect  of,  320. 
Strong,  821. 

Shift  the  burden  of  proof,  321. 
Prima  facie  evidence,  321. 
Effect  of,  322. 

Distinguishable  from   Praesuinptiones  juris    tan- 
turn,  323. 
Mixed  presumptions — presumptions  of  mixed  law  and 
fact — presumptions  of  fact  recognized  by  law,  324. 
Grounds  of,  324. 
Artificial  presumptions,  325. 

Use  of,  325. 
Directions  to  juries  respecting  presumptions  of  fact 

and  mixed  presumptions,  326. 
New  trials  for  disregard  of,  by  juries,  327. 
Presumptions,  Conflicting,  329. 
How  arising,  329. 
Eules  respecting,  330. 

1.  Special  presumptions  take  precedence  of  general,  331. 

2.  Presumptions  derived  from  the  course  of  nature  are  stronger 
than  casual  presumptions,  332. 

3.  Presumptions  are  favored  which  give  validity  to  acts,  333. 

4.  Presumption  of  innocence  favored  in  law,  334. 
Presumptions  in  Criminal  Jurisprudence,  432. 

Criminal  intent  presumed  from  certain  acts,  545. 

transferred  from  one  act  to  another,  434. 
Presumption  of  higher  degree  of  guilt,  435. 
Maxim  ''Qui  semel  malus,  semper   praesumitur  esse  malus  eodem 

genere,"  436. 
Statutory  presumptions  in  criminal  law,  437. 
Presumptions  for  the  protection  of  accused  persons,  438. 
Presumptions,  Miscellaneous,  425. 
Relating  to  real  estate,  426. 

Founded  on  the  relations  in  which  parties  stand  to  each  other,  64& 
In  contracts,  428. 
Affecting  common  carriers,  430. 
inn-keepers,  430. 
Presumptions  of  Law  and  Fact  usually  met  in  practice,  335. 
Presumptions  against  ignorance  of  the  law,  336. 
Presumptions  derived  from  the  course  of  nature,   338. 
against  misconduct,  345. 
in  favor  of  the  validity  of  acts,  353. 
from  possession  and  user,  366. 

the  ordinary  conduct  of   mankind,  the  habits  of 
of  society,  and  usages  of  trade,  400. 


1252  INDEX .  [  The  references  are 

Presumptions  of  Law  and  Fact — continued. 

Presumptions  of  the  continuance   of  things  in  the  state  in  wnich 

they  have  existed,  405. 

in  disfavor  of  a  spoliator,  411. 

in  international  law,  422. 
in  maiitime  law,  423. 

Presumptive  Evidence, 
What,  27. 

Equally  admissible  with  direct  evidence,  295. 
Not  excluded  by  rule  requiring  primary  evidence,  295. 
Comparison  between,  and  direct  evidence,  296. 
Advantages  of  direct  over,  296. 

presumptive  over  direct,  296. 
Probative  force  of  a  chain  of,  298. 
Rests  wholly  in  experience,  301. 
Necessity  for  resorting  to,  more  frequent  in  criminal  than  in  civil 

cases,  439. 
Principal  forms  of  inculpatory  presumptive   evidence  in  criminal 
cases,  452. 

General  heads, 

Real  evidence,  452. 

Evidence  derived  from  the  antecedent  conduct  or  position 

of  the  accused,  452. 
Evidence   derived   from   the  subsequent  conduct  of  the 

accused,  452. 
Confessorial  evidence,  452. 
Special  heads, 

Suppression  or  eloignment  of  evidence,  412. 
Forgery  of  exculpatory  evidence,  412. 
Motives,  means,  and  opportunities,  453. 
Preparations  and  previous  attempts,  454. 
Declarations  of  intention  and  threats,  458. 
Change  of  life  or  circumstances,  459. 
Evasion  of  justice,  460. 
Tampering  with  officers  of  justice,  460. 
Fear, 

Indicated  by  passive  deportment,  &c,  466. 

Confusion  of  mind,  466. 
Indicated  by  desire  for  secrecy,  467. 
Silence  when  accused,  574. 
Evasive  statements,  575. 
False  statements,  576. 
Presumptive  Evidence,  General  Observations  on,  468. 

Cautions  to  tribunals  respecting  470. 
Presumptive  Proof,  in  criminal  cases,  439. 
Rules  peculiarly  applicable  to,  441. 


to  the  Sections]  INDEX.  1253 

Presumptive  Prooi — continued. 

There   must  be   clear  and  unequivocal  proof  of  the   corpus 

delicti,  444. 
The  hypothesis  of  guilt  should  be  consistent  with  all  the  facts 
proved,  441. 
Previous  Attempts  to  Commit  Offense, 
Presumption  of  guilt  from,  454. 

Previous  Convictions, 

When  receivable  in  evidence, 
Of  parties,  261. 
Of  witnesses,  263. 
Previous  Quarrels, 

Presumption  of  homicide  from,  319. 
Previous  Statements, 

Cross-examination  as  to,  481,  642. 
Prima  Facie  Case, 

Burden  of  proof  shifted  by,  273,  346. 
Prima  Facie  Evidence, 

What,  321. 
Primary  Rules  of  Evidence, 

Relate  to  the  quid  probandum,  111,  249. 

Universal  recognition  of,  111. 

Three  in  number,  ill. 

1.  Evidence  must  be  directed  solely  to  the  matters  in  dispute, 

111. 

2.  Burden  of  proof  lies  on  the  party  who  would  be  defeated 

supposing  evidence  not  given  on  either  side,  111. 

3.  Sufficient  to  prove  the  substance  of  the  issue,  111. 
Primary  and  Secondary  Evidence, 

Meaning  of  these  terms  in  our  law,  89. 
Primary  evidence, 

What  is  it,  472. 
General  rule — Secondary  evidence  not   receivable  until  the  non- 
production  of  the  primary  is  accounted  for,  472. 

Whether  this  principle  extends  to  evidence  extra  causam,  473. 
Answers  of  the  judges  in  Queen  Caroline's  case,  473. 
Examination  of  these,  474. 
Resolutions  of    the  judges  under  6  &  7  Will.  4,  c.    114, 

479. 
Practice  since  those  resolutions,  480. 

Practice  under  the  17  &  18  Vict.  c.  125,  ss.  24,  103,  and 
28  Vict.  c.  18,  ss.  1,  5,  481. 
Secondary  evidence, 
What  it  is,  472. 
When  admissible,  482. 

1.   Document  destroyed  or  lost,  482. 


1 254  INDEX.  \  The  references  art 

Primary  and  Secondary  Evidence — continued. 

2.   Document,  in  the  possession  of  the  adversary,  who  does 

not  produce  it  after  notice,  482. 
8.  Document   in  the  possession  of  a  party  privileged  to 

withhold  it,  who  insists  on  his  privilege,  482. 
4.  Document  in  the  possession  of  a  party  who  is  out  of 

the  jurisdiction  of  the  court,  482. 
Principles  to  be  borne  in  mind  when  considering  whether 

a  sufficient  foundation  has  been  laid  for  the  reception  of 

secondary  evidence, 

1.  Whether  the  loss  or  destruction  of  the  document 

has  been  proved,  482. 

2.  "Whether  notice  to  produce  sufficient,  482. 
Nature  of,  483. 

No  degrees  of,  483. 
Exceptions  to  the  rule  requiring  primary  evidence,  484. 

1.  Where  production  physically  impossible,  484. 

2.  Where  highly  inconvenient  on  physical  grounds,  484. 

3.  Where  on  moral  grounds,  485. 

Public  documents,  487. 

Different  sorts  of  copies  used  used  for  proof  of  documents, 
486. 

1.  Exemplifications  under  the  great  seal,  619. 

2.  Exemplifications  under  the  seal  of  the  court  where 

record  is,  486. 

3.  Office  copies,  486. 

4.  Examined  copies,  486. 

5.  Certified  copies,  486. 

6.  Photographic  copies,  486. 
Proof  of  public  documents,  487. 
Modes  of  proof  provided  by  statute,  488. 

4.  Appointments  of  public  officers,  489. 

5.  Examination  on  the  voir  dire,  490. 

Circumstantial  evidence  not   affected  by  rule  requiring   primary 
evidence,  491. 

Nor  self-disserving  evidence,  491. 
Principal  and  Evidentiary  Facts, 
What,  11. 

Connection  between,  must  be  visible,  90. 
Private  Writings.     See  Writings. 
Privilege  of  Parties, 

Not  to  answer  certain  questions,  174. 
Husbands  and  wives  of,  175. 
Questions  tending  to  prove  adultery,  180,  183. 
Not  to  produce  documents,  216. 


to  the  Sections.}  INDEX.  1 2$  5 

PrivU«»p:e  of  Parties — continued. 

Attorneys  of  parties,  216. 
Not  to  answer  interrogatories,  628. 
Privilege  of  Witnesses, 

Not  to  answer  questions  tending  to  criminate,  126. 
Or  to  disgrace,  130. 
Or  subject  to  civil  proceedings,  131. 
privileged  Communications, 
Universally  recognized,  49. 
No*  receivable  in  evidence,  528. 
Reason  of  this  rule,  578. 
Cases  to  which  it  applies,  578. 

1.  Political,  578. 

2.  Judicial,  579. 

t.  Professional,  581. 

Communications  to  legal  advisers,  581. 

to  medical  men — not  privileged,  581 
to  spiritual  advisers,  583. 
4.  Social, 

Between  husband  and  wife,  586. 
Secrets  of  business  or  friendship — not  protected,  586 
Probabilities,  Calculus  of, 

See  Calculus  op  Probabilities. 
Probability, 

Is  to  be  considered  in  weighing  testimony,  24. 
Preponderance  of — sufficient  basis  of  decision  in  civil  casea,  95. 
Proclamation, 

By  the  Queen,  how  proved,  488. 
By  foreign  state,  how  proved,  488. 
Procreation, 

Power  of,  when  presumed,  338. 
Profert,  rule  requiring, 

Observations  on,  456. 
Professional  Matters, 

When  privileged  from  disclosure  on  grounds  of  public  policy,  581. 
Promise  of  Marriage,  action  for  breach  of, 
Parties  competent  witnesses  in,  180. 
Corroborative  evidence  required  in,  621 
Promise  to  Marry,  generally, 

Means  within  a  reasonable  time,  400. 
Promissory  Note, 

Consideration  for,  presumed,  314. 
Proof, 

Meaning  of  term,  10. 
Proofs, 

"Living,"  what,  216. 
"Dead,"  what,  216. 


1256  INDEX.  [  The  references 

Proper  Custody, 

Production  of  documents  from,  rule  as  to,  499. 
Proprietory  Interest, 

Declarations  against,  admissible,  500. 
Prosecutor, 

A  competent  witness,  169,  184. 

Can  not  address  the  jury,  184,  631. 
Protestations  of  Innocence, 

Superstitious  notions  respecting,  471. 
Proximate  Cause, 

Law  regards,  90. 
Psychological  Facts, 

Distinguished  from  physical,  12. 

Presumptions  rendered  necessary  by  difficulty  of  proving,  488. 
Public  Documents, 

Proof  of,  487. 

Modes  of  proof  provided  by  statute,  488. 
Public  Interest, 

Matters  of.  provable  by  derivative  evidence,  497. 
Public  Jurisdiction, 

How  differing  from  domestic,  39. 
Public  Officers, 

Presumption  of  due  appointment  of,  356,  489. 
Public  Offices, 

Presumptions  from  course  of  business  in,  408. 
Public  Policy, 

Evidence  rejected  on  grounds  of,  578. 

Matters  thus  excluded, 
Political,  578. 
Judicial,  579. 
Professional,  581. 
Social,  586. 
Public  Press, 

Misconduct  in  certain  cases,  463. 
Public  Rights, 

Favored,  387. 
Public  Writings.    See  Writings. 
Publicity  of  judicial  proceedings, 

A  feature  of  English  law,  80. 

Salutary  effects  of,  100,  106. 

Not  advisable  in  some  cases,  107. 
Purgation  under  Canon  Law, 

What,  59. 


Quakers, 

Affirmation  of,  receivable,  168. 


to  the  Sections.]  INDEX.  I2S7 

Qualification  or  Exception, 
Burden  of  proof  of,  276. 

Quantity  of  Evidence, 

Absurdity  of   attempting   to  limit,    by  law,  the  number  of  wit 

nesses  required  in  each  case,  48. 
Advantages  of  requiring   a  certain  number  of  media   of  proof 

65. 
Evils  of,  65. 

Practice  of  the  civilians  and  canonists,  66. 
Mosaic  law,  66. 
Mohammedan  law,  66. 
Hindu  law,  596,  n.  (a). 

Arguments  for  a  plurality  of  witnesses  in  all  cases,  597. 
Arguments  against,  597. 
English  law  on  this  subject, 

General  rule — No  particular  number  of  instruments  of  evidence 
required  for  proof  or  disproof,  596. 
Origin  of  this  rule,  599. 
Exceptions  at  common  law, 

Prosecutions  for  perjury,  603. 
Reason  usually  assigned  for,  605. 
True  reason,  606. 

Amount   of    evidence    required  from    each    witness,    oi 
proof,  608. 
Proof  of  wills,  611. 
Trial  by  witnesses,  612. 
Claims  of  villenage  or  niefty, 
By  statute, 

Trials  for  treason  and  misprision  of  treason,  615. 

Reasons  for  this  alteration  in  the  common  law,  618. 
Objections  to,  619. 
Fallacy  of,  619. 

Two  witnesses  not  requisite  to  prove  collateral  mait- 
ters,  620. 
Other  statutory  exceptions,  621. 
No  artificial  weight  attached  to  the  testimony  of  the  two  witnesses. 
622. 
Quasi  Preesumptiones  Juris, 

What  are,  324. 
Quasi  Public  Documents, 

Made  evidence  of  facts,  118,  510. 

Quintilian, 

His  rules  for  the  interrogation  of  witnesses,  652,  658. 

Quit-Rents, 

When  payments  presumed  to  be,  427. 


12  58  INDEX.  fc  Tht  rtfcrencet  an 

Rape, 

Inferen  ces  from  real  evidence  in  cases  of,  201. 

Evidence  of  character  of  prosecutrix  admissible  in,  258. 
Ratification, 

Relates  back  to  time  of  act  done,  313. 
Real  Estate, 

Presumptions  affecting,  426. 
Real  Evidence, 

What,  28,  196. 

Sometimes  direct,  196. 

Usually  circumstantial,  198. 

Immediate,  28,  197. 

Reported,  28,  198. 

Necessary  inferences  from  circumstantial  real  evidence,  199 

Presumptive  inferences  from,  201. 

Infirmative  hypotheses  affecting  real  evidence, 
Accident,  202. 
Forgery,  203. 
Lawful  action  of  the  accused,  209. 

Sometimes  fallacious  as  to  the  quality  of  crime,  210. 

Observations  on  the  presumption  of  larceny  from  possession  of  stolen 
property,  211,  214. 
Reasonable  and  Probable  Cause, 

Is  a  question  for  the  judge,  82. 
Reasonable  Evidence, 

What  is,  a  question  of  law,  82. 
Rebuttable  Presumptions,  306. 
Rebutting  Case, 

When  it  may  be  adduced,  631. 

Right  to  reply  upon,  631. 
Receipt, 

Does  not  exclude  other  proof  of  payment,  223. 

Under  seal,  conclusive  evidence  of  payment,  306. 

Not  under  seal,  only  prima  facie  evidence  of,  406. 

For  subsequeut  rent,  prima  facie  evidence  of  payment  of  prece- 
dent, 321. 

Receiving  property,  knowing  it  to  have  been  stolen,  proof  of  251. 
Recitals, 

Estoppel  by,  542. 
Recollections  of  Persons  who  have  read  Documents, 

Are  secondary  evidence,  473. 
Reconveyance, 

May  be  presumed,  393. 
Record, 

Presumed  to  be  correctly  made,  348. 

May  be  presumed  in  favor  of  possession,  393. 

Difference  between  substantive  and  judicial  parts  of,  590. 


to  the  Sections.']  INDEX.  1259 

Record — continued. 

Imports  absolute  verity,  218,  590. 
May  be  impeached  for  fraud,  595. 
Record,  Estoppels  by,  533. 
Record,  Proof  of,  485. 
Recovery, 

May  be  presumed  in  favor  of  possession,  393. 
Rector,  Deceased, 

Books  of,  when  evidence  for  successor,  504. 
Declarations  by,  admissibility  of,  to  prove  custom,  504. 
Re-Examination, 

Practice  as  to,  631. 
Refreshing  Memory  of  Witnesses, 

Memoranda  may  be  U3ed  for,  224,  237,  241. 
Rule  in  case  of  witness  to  handwriting,  238. 
Tradesman's  books,  503. 
Registers  of  Births,  Marriages,  and  Deaths, 
Public  documents,  218. 
How  provable,  487. 
Registration  of  Births,  &c, 

Statutes  relating  to,  121. 
Relation,  fictions  of,  313. 
Relations  between  the  Sexes, 

A  source  of  false  testimony,  192. 
A  cause  of  false  confession,  567. 
Relations,  Domestic  and  Social, 

A  source  of  false  testimony,  193. 
Relations,  in  which  Parties  stand  to  each  other, 

Presumption  from,  428. 
Release, 

May  be  presumed  from  circumstances,  320,  40ft. 
Relevant, 

Evidence  must  be,  251. 
Religion,  want  of, 

Incompetency  from,  159. 
Three  forms  of,  159. 

1.  "Want  of  religious  knowledge,  160. 

2.  "Want  of  religious  belief,  161. 

3.  Refusal  to  comply  with  religious  forms,  166. 
Presumption  against,   161,  351. 

Religious  Belief, 

Right  to  examine  witness  as  to,  161. 
Religious  Sanction  of  Truth,  18. 
Rem,  Judgments  in, 

Bind  all  the  world,  218. 
Remote  Ancestors, 

Death  of,  without  issue,  presumed  in  favor  of  possession,  398. 


1 260  INDEX.  [  The  referent*  art 

Remote  Cause, 

Not  regarded  by  law,  90. 
Rent,  Quit, 

Payments,  when  presumed  to  be,  427. 
Rent  Service, 

PaymeDts  when  presumed  to  be,  400. 
Replevin  Clerk, 

Appointment  of,  may  be  presumed,  356. 
Reply, 

Right  to,  G31. 
Reply,  Evidence  in,  631. 
Reputation, 

Perjury  often  committed  to  preserve,  194. 
Reputation,  Evidence  of, 

Admissible  in  questions  of  public  rights,  497. 
Res  Gestae, 

Must  not  be  confounded  with  hearsay,  495. 

May  consist  of  words  or  acts,  495. 

Rule  as  to  res  inter  alios  acta,  does  not  exclude  proof  of,  506. 

Words  accompanying  an  act  may  be  proved  as  part  of,  220. 
Res  inter  alios  acta  alteri  nocere  non  debet, 

Antiquity  of  this  rule,  112. 

Recognized  in  the  Roman  law,  112,  n.  (k). 

Meaning  of  this  rule,  506. 

Extent  of  it,  506. 

Distinction  between,  and  derivative  evidence,  507. 
Does  not  exclude  proof  of  res  gestae,  508. 

Instances  illustrative  of  the  rule,  509. 

Exceptions  to  the  rule,  510. 

Res  judicata  pro  Veritate  accipitur, 
Maxim  universally  recognized,  44. 
Exists  in  full  force  in  criminal  law,  432. 
Meaning  of  "res  judicata,"  589. 

Difference  between  substantive  and  judicial  part  of  record,  590. 
Cases  where  the  maxim  applies,  592. 
The  thing  must  be  the  same,  592. 
The  person  must  be  party  or  privy,  592. 
Exceptions, 

Judgments  in  rem,  593. 
Other  instances,  593. 
Judgments  to  work  an  estoppel  must  be  pleaded  if  there  be  oppor 
tunity,  594. 
may  be  impeached  for  fraud,  595. 
may  be  shown  to  be  forged,  595. 
Resolutions  of  the  Judges,  under  6  &  7  Will.  4,  c.  114,  479. 
Practice  under  them,  480. 


to  the  Sections.}  INDEX.  1 26 1 

Responsion,  Evasive, 

Presumption  of  guilt  from.  575. 
Responsion,  False, 

Presumption  of  guilt  from,  576. 
Restraint  of  Trade, 

Deed  in,  must  be  on  real  consideration,  429. 
Revenue  Officers, 

Appointment  of,  may  be  resumed,  356. 
Revenue  Proceedings  in  the  Exchequer, 

Examination  of  witnesses  under  commission  in,  104. 

Husbands  and  wives  of  parties  competent  witnesses  in,  181. 

Power  of  making  amendments  extended  to,  289. 

Right  of  attorney-general  to  reply  in,  631. 
Revocation  of  Will, 

Facts  from  which  it  may  be  presumed,  401. 
Right  to  begin, 

Decided  by  the  judge,  637. 

Rules  as  to,  637. 

Erronecus  ruling  as  to,  when  a  ground  for  anew  trial,  638. 

Advantages  and  disadvantages  of  having  to  begin,  639. 
River,  Property  in  soil   of,  presumptions  respecting,  426. 
River,  Tidal, 

Shore  of,  presumed  to  be  extra-parochial,  426. 
Road, 

Order  to  stop  may  be  presumed,  393. 
Roads,  Property  in  Soil  of, 

Presumptions  respecting,  426. 
Roman  Catholic  Priests,  confessions  to,  how  far  privileged,  583. 
Roman  Catholic  Witnesses,  how  sworn  in  Ireland,  163. 
Rules, 

Of  judicial  evidence, 

Necessity  for.     See  Evidence,  Judicial. 

In  English  law.     See  Evidence,  English  Law  op. 

Of  proof  in  criminal  cases, 

1°.  Applicable  universally,  440. 

The  onus  of  proof  lies  on  the  prosecutor,  440. 
The   evidence    must  exclude    to   a   moral    certainty  every 
reasonable  doubt,   440. 
In  matters  of  doubt  it  is  safer  to  acquit  than  condemn,  440. 
2Q.  Applicable  when  the  proof  is  presumptive,  441. 

1.  There    must    be  clear  and    unequivocal    proof  of  the 

corpus  delicti,  441. 

2.  The  hypothesis    of    delinquency  should    be   consistent 

with  all  the  tacts  proved,  451. 

Rules    for    Conducting   the  Examination   and    Cross-Examination   ol 
Witnesses,  649. 


1 262  INDEX.  [  The  reference  art 

Rumor, 

Received  as  evidence  by  the  civilians,  69,  471. 
But  not  in  English  law,  495. 

Sanctions  of  Truth, 

Natural,  16. 

Moral,  17. 

Religious,  18. 

Powerful  influence  of,  19. 

Sometimes  produce  falsehood  instead  of  truth,  20. 

The  political  or  legal  sanction,  55. 
Banity, 

Is  always  presumed,  332. 

Presumption  in  favor  of,  rebuttable,  314. 
Grounds  of,  433. 
Satisfied  Term, 

Surrender  of,  when  presumed,  396. 
Science, 

Opinion  of  experts  evidence  on  matters  of,  613. 
Scintilla  of  Evidence, 

Not  sufficient  to  leave  to  jury,  82. 
Seals, 

Taking  off  deed,  prima  facie  evidence  of  revocation,  401. 
Seashore, 

Property  in,  presumption  respecting,  426. 
Seaworthiness,  presumptions  relating  to,  423. 
Secondary  Evidence, 

See  Primary  and  Secondary  Evidence. 
Secondary  Rules  of  Evidence, 

Relate  to  the  modus  probandi,  111. 

Much  more  numerous  than  the  primary,  111. 

Some  almost  as  universal,  111. 
Others  much  less,  112. 

For  the  most  part  only  affect  evidence  in  causa,  298. 
Secrets  of  State, 

Privileged  from  disclosure,  49,  578. 

Not  those  of  business  or  friendship,  586. 
Securities  for  legal  and  historical  truth, 

Difference  between,  50. 
Securities  for  the  truth  of  Legal  Evidence,   54. 
Seisin  in  Fee,  presumed  from  possession,  366. 
Self-Criminating  Evidence, 

Iufirrnative  hypotheses  affecting,  554. 

Legitimate  use  of,  577. 
Self- Disserving  Evidence.     See  Self-Regarding  EviDEHOB. 
Self-Regarding  Evidence, 

What.  518. 


to  the  Sections.]  INDEX.  1 263 

Self-Regarding  Evidence — continued. 

Is  either  self-serving  or  seli-disserving,  518. 
General  rule  with  respect  to,  519. 
Self-serving  evidence,  not  in  general  receivable,  519. 
Exceptions, 

Where  part  of  a  document  or  statement  is  used  as  a  self 

disserving  statement  against  a  party,  520. 
Facts  stated  by  an  accused  person  on  his  trial,  520. 
Words  accompanying  an  act,  520. 
Self-disserving  evidence,  521. 
How  supplied,  521. 
By  words,   521. 
writing,  521. 
signs,  521. 
silence,  521. 
Different  kinds  of, 

1.  Division  first, 

1.  Judicial,  522. 

2.  Extra-judicial,  523. 

2.  Division  second, 

1.  Admissions,  523. 

2.  Confessions,   523. 
8.  Division  third, 

1.  Plenary,  524. 

2.  Not  plenary,  524. 

Admissible  as  primary  evidence  of  written  documents,  525. 
Slatterie  v.  Pooley,  525. 

Discussion  of  the  principle  laid  down  in  that  case,  526. 
Not  receivable  to  prove  the  execution  of  a  deed,  except 
under  the  17  &  18  Vict.  c.  20,  527. 
To  whom   self-disserving  statements,  &c,  may  be  made,  528. 
In  general  immaterial,  528. 
Account  stated,  528. 
Distinction  formerly  takon  with  respect  to  confessions  by 

accused  persons,  528. 
When  not  admissible, 

Confidential  communications  recognized  by  law,  528. 
Communications  made  "  without  prejudice,"  528. 
State  of  mind  of  party  making  self-disserving  statement,  529. 
Drunkenness,  529. 
Talking  in  sleep,  529. 
Unsoundness  of  mind,  529. 
Self-disserving  statements  made  under  mistake  of  fact  do  not 
prejudice,  530. 

Under  mistake  of  law,  530. 

Confessio  juris  does  not  prejudice,  530. 


I264  INDEX.  {.The  references  art 

Self  Regarding  Evidence — continued. 

Confession  of  a  matter  compounded  of  law  and  fact 
is  receivable,  530. 
By  whom  self-disserving  statements,  &c.,  may  be  made,  531. 
The  party  himself,  531. 
Those  under  whom  lie  claims,  531. 
Lawful  agent  of  the  party,  531. 
Self-disserving  statements  in  criminal  cases, 
Judicial  confession,  548. 
Pleading,  549. 
Collateral  matters,  550. 
Extra-judicial  self-criminative  statements, 
Admissibility  of,  551. 

Must  be  made  voluntarily,  or  at  least  freely,  551. 
Effect  of  inducements  to  confess,  551. 
Admissibility  of,  must  be  decided  by  the  judge,  551. 
Effect  of,  552. 

Not  conclusive,  553. 

If  believed,  sufficient  to  warrant  conviction  without 
other  evidence,  553. 
Caution.  553. 
Infirmative  hypotheses  affecting  self-criminative  evidence, 
554. 
Extravagant  views  of  the  civilians,  554. 
Continental  practice,  5."i5. 
Common-law  practice,  555. 

Arguments  in  favor  of  judicial  interrogation,  550. 
Arguments  against,  557. 
False  self-criminative  statements,  500. 

Motives  for,  sometimes  impossible  to  ascertain,  559. 
Two  classes  of, 

Resulting  from  Mistake,  560. 
Of  fact,  5G1. 
law,  502. 
In  expectation  of  Benefit,  5G3. 
To  escape  vexation,  563. 
From  collateral  objects,  565. 

Relating  to  the  party  himself,  565. 

To  stifle  inquiry  into  other  matters, 

565. 
Taedium  vita),  566. 
Relation  between  the  sexes,  5G7. 
Vanity,  568. 
Other  instances,  569. 
When  other  parties  are  involved,  570. 
Desire  of  benefiting  others,  579. 


to  the  StMons.]  INDEX.  I265 

Self-Regarding  Evidence — continued. 

From  desire  of  injuring  others,  571. 
Confessions  of  impossible  offenses,  572. 
Additional  infirmative  circumstances  in  extra -judicia, 
confessorial  statements, 
Mendacity,  573. 
Misinterpretation,  573. 
Incompleteness,  573. 
Non-responsion,  574. 

Infirmative  hypotheses,  574. 
Evasive  responsion,  574. 

Infirmative  hypotheses,  574. 
False  responsion,  576. 

Infirmative  hypotheses,  576. 
Legitimate  use  of  cases  of  false  self-criminative  statements,  577. 
Self-serving  Evidence, 

Not  in  general  admissible,  520. 
Exceptions,  520. 
Separatists, 

Affirmation  of,  receivable,  166. 
Servant,  general  hiring  of, 

Presumed  for  a  year,  400. 
Sexes  Relations  between, 

A  sourse  of  false  testimony,  192. 
cause  of  false  confessions,  567. 
Sexual  Intercourse, 

Male  under  fourteen  presumed  incapable  of,  338. 
Absence  of  opportunity  for,  may  be  proved  on  question  of  legiti- 
macy, 314. 
Presumption  of  legitimacy  from  fact  of,  irrebuttable,  349. 
Presumed  from  marriage,  400. 
Husband  or  wife  not  admissible  to  disprove,  586. 
Shorthand  Writers'  Notes, 

May  be  read  as  secondary  evidence  of  the  contents  of  a  document, 

483. 
Signs, 

Self-disserving  evidence  supplied  by,  521. 
Silence, 

Self-disserving  evidence  supplied  by,  521,  574. 
See  Self-regarding  Evidence. 
Skill,  Questions  of, 

Opinion  of  experts  admissible  on,  513. 
Slight  Presumptions, 

What,  319. 
Social, 

Relations — a  source  of  false  testimomy,  193. 
80 


j  266  INDEX.  [  The  references  ar$ 

Social— Continued. 

Matters,  judicially  noticed,  25G. 

Matters,  privileged  from  disclosure  on  grounds  of  public  policy 
586. 
Society,  Habits  of, 

Presumptions  from,  400. 
Soil,  Presumptions  as  to  Property  in, 
Of  sea-shore,  426. 
rivers,  426. 
lakes,  426. 
highways,  426. 
private  roads,  426. 
roads  under  inclosure  acts,  426. 
waste  lands  of  manor,  426. 
land  adjoining  road.  426. 
ditch  bounding  inclosure,  426. 
fishery,  429. 
Soldiers, 

Attestation  of,  may  be  presumed,  366. 
Somnambulism, 

Acts  done  in  state  of,  202. 
Sovereign, 

Not  compellable  to  give  evidence,  125. 
Whether  he  may  be  a  witness,  183. 
Presumed  to  know  the  law,  337. 
Sovereign  Prince, 

Acts  by,  when  presumed  to  have  been  done  in  character  of,  418. 
Special  presumptions, 

Take  precedence  of  general,  331. 
Specialty, 

Consideration  for  presumed,  220. 
Payment  of,  when  presumed,  406. 
Spiritual  Advisers, 

Confessions  to,  admissibility  of,  551,  583. 
Spoliator, 

Presumptions  in  disfavor  of,  411. 
Instances  of,  411. 
Eloigning  instruments,  &c,  412. 
Extent  of,  as  against  the  spoliator  of  documents,  418. 
Occasionally  carried  too  far.  414. 
Especially  in  criminal  cases,  415. 
Recognized  ki  international  law,  420. 
Stamps, 

What,  230. 

Documents  lost  presumed  duly  stamped,  230. 

not  produced  on  notice  presumed  duly  stamped,  230,  864. 


to  the  Sections]  INDEX.  1 267 

Stamps —  Continued. 

Unstamped    documents  admissible  to  show  illegality   or   fraud, 
230. 
And  in  criminal  proceedings,  231. 

Objection  for  omission  or  insufficiency  of,  taken  by  officer  of  tha 
court,  231. 

No   new    trial    granted    for  ruling  that   document  is   sufficiently 
stamped,  or  does  not  require  a  stamp,  231. 
Statute, 

Burden  of  proof  sometimes  imposed  by,  268. 

Peculiar  modes  of  proof  prescribed  or  permitted  by,  in  certain  pro- 
ceedings, 76,  293. 

Presumptions  established  by,  304,  324,  325. 
Stirling  Inquiry  into  other  matters, 

A  cause  of  false  confessions,  565. 
Stolen  Property,  Possession  of, 

Presumption  of  larceny,  from,  211,  321. 

Is  only  prsesumptio  mixta,  329. 
Strong  Presumptions, 

What,  319. 
Subalternate  principal  Facts, 

Evidence  admissible  to  prove,  264. 
Subalternate  principal  and  evidentiary  Facts, 

What  are,  11. 
Subpoena  duces  tecum, 

What,  216. 
Subscribing  Witness, 

When  he  must  be  called,  220. 
Substance  of  Issue, 

Sufficient  to  prove,  111,  278. 
Substantive  Rules  of  Law,  come  to  maturity  before  adjective,  119. 
Substantive  part  of  Record,  differs  from  the  judicial,  590. 
Suicide, 

Presumption  of  malicious  intent  in  cases  of,  433,  n.  (a). 

Indicia  of,  447. 
Summing  up  Evidence  at  Trial, 

By  judge,  82. 

By  party  or  his  counsel,  631. 
Superstitious  Notions, 

Mischievous  effect  of,  in  the  administration  of  justice,  471. 
Suppressing  Instruments  of  Evidence, 

Presumption  arising  from,  412. 
Surprise, 

New  trial  on  ground  of,  82. 
Surrender,  Presumption  of, 

Of  easements  by  non-user,  388. 


1 268  1XDEX.  I  The  reference!  art 

Surrender — eontin  ued. 

Of  copyhold,  393. 

By  teuant  for  life,  393. 

Of  terms,  395. 

Of  mortgage  term,  407. 
Surrogate, 

Appointment  of,  may  be  presumed,  356. 
Survivorship, 

Presumption  of,  where  several  persons  perish  by  a  common  calamity, 
410. 

The  civil  law,  410. 
French  law,  410. 
English  law,  410. 
Suspicion  of  oral  testimony, 

Grounds  of,  189. 
Swearing, 

Forms  of,  162. 
Symbolic  Signature, 

What,  232. 

Tsedium  Vitae, 

A  cause  of  false  confession,  568. 
Talkative  Witnesses, 

How  to  be  dealt  with,  661. 
Talking  in  Sleep, 

Effect  of,  as  evidence,  92,  529. 
Tallies  of  the  Exchequer,  215. 
Tampering  with  Officers  of  Justice, 

Presumption  of  guilt  from,  460. 
Tearing  a  Will, 

Prima  facie  evidence  of  revocation,  401. 
Tenancy, 

Presumptions  as  to  nature  of,  400. 
Testimony, 

Natural  tendency  of  mind  to  believe,  15. 

Grounds  of  belief  in,  15. 

Guarantees  for  the  truth  of,  16. 

Influence  of  these,  19. 

Credit  due  to,  21. 

Presumption  of  the  truth  of,  132,  352. 
Testimony  of  deceased  Witness,  when  provable  by  deri>«<f  *  sv'Al*  a 

496. 
Threats  to  commit  an  Offense, 

Presumption  of  guilt  from,  458. 
Time, 

Fictions  as  to,  313. 


to  the  Sections]  INDEX.  1 2t>9 

Time  immemorial, 

Meaning  of  at  common  law,  370. 
Tithes, 

Exemption  from,  may  be  presumed,  393. 
Or  disseverance  of,  393. 
Title  Deeds, 

•   Privilege  of  not  producing,  216. 

answering  interrogatories  as  to  contents  of,  628. 
Tortious  Conduct, 

Presumption  against,  350. 
Torture, 

Evidence  extracted  by,  not  admissible,  551. 
Practice  of,  in  the  civil  and  cannon  laws,  69,  554. 
Trade,  Usages  of, 

Evidence  of,  admissible  to  explain  written  instruments,  228. 
Presumptions  from,  402,  403. 

Evidence  of  experts  admissible  on  questions  of,  513. 
Trade,  Contracts  in  Restraint  of, 

Must  be  on  real  consideration,  429. 
Tradesmen's  Books, 

Euidence  in  the  civil  law,  69,  503. 

And  by  the  laws  of  some  other  countries,  503. 
By  the  civil  law  constituted  a  semi-proof,  503. 
Not  admitted  as  evidence  in  the  English  law,  503. 

May  be  used  as  memoranda  to  refresh  memory,  503. 
Available  as  indicative  evidence,  503. 
Transmitted  Evidence.     See  Derivative  Evidence. 
Transportation, 

Desire  of,  a  cause  of  false  confessions,  569. 

Treason,  Trials  for, 

Doubtful  if  husband  and  wife  competent  witnesses  against  each 
other  in,  178. 

Number  of  witnesses  required  in,  615. 

Counsel  for  accused  in,  632. 
Treason  Felony, 

Two  witnesses  required  in  certain  cases  of,  620. 
Trial, 

Amendment  of  variances  at.  285. 

Personal  attendance  at,  enforced  by  law,  125. 

Exceptions  to  this  rule,  101. 

Proceedings  previous  to,  624. 

Course  of,  631. 

Principal  incidents  of,  636. 
Trial  by  Judge  and  Jury, 

Common-law  tribunal  for  deciding  issues  of  fact,  82. 


I27O  INDEX.  [The  references  an 

Trial  by  Judge  and  Jury — continved. 

Respective  functions  of  judge  and  jury,  82. 

Principles  on  which  these  are  founded,  83. 
Trial  by  Witnesses,  612. 
Tribunals,  different  kinds  of, 

Summary,  39. 

Fixed,  83. 

Casual,  83. 
Tribunals,  Functions  of;  judicial,  not  inquisitorial,  558. 
Trustees,  conveyances  by, 

Presumption  of,  394. 
Truth,  sanctions  of, 
natural,  16. 
moral,  17. 
religious,  18. 

Powerful  influence  of,  19. 

Sometimes  produce  falsehood  instead  of  truth,  20. 

The  political  or  legal  sanction,  55. 

Uncertainty, 

Avoids  judgments,  591. 
verdicts,  591. 
awards,  591. 
Undersheriff,  appointment  of,  may  be  presumed,  356. 
Unintelligibility  in  -written  Instruments, 

Differs  from  ambiguity,  226. 
Unity  of  possession, 

Puts  an  end  to  prescriptive  right,  372. 
Unoriginal  Evidence.     See  Derivative  Evidence. 
Unseaworthiness, 

When  presumed,  423. 
Unsound  Mind,  Persons  of, 

When  incompetent  as  witnesses,  146. 

Self-disserving  statements  made  by,  529. 
Usage,  Modern, 

Jury  should  be  directed  to  find  right  from,  373. 
Usages  of  Trade, 

Evidence  of,  admissible  to  explain  written  instruments,  228. 

Presumptions  from,  404. 
User  and  Possession, 

Presumptions  from,  366. 

Evidence  of  prescription  from,  368. 

Effect  of,  as  evidence,  where  not  sufficient  to  show  prescriptive 
right,  375. 

Validity  of  Acts, 

Presumptions  in  favor  of,  353. 


to  the  Sections.}  INDEX.  12JI 

Vanity, 

A  cause  of  false  confessions,  568. 
Variance  between  pleading  and  proof, 
Effect  of,  at  common  law,  285. 
Statutes  for  amendment  of, 
In  civil  cases,  286-290. 
Effect  of,  290. 
In  criminal  cases,  291. 
Verbal  Evidence, 

Meaning  of  the  rule  that  it  is  inferior  to  written,  223. 
Differs  from  "parol,"  223,  n.  (a). 
Verdict, 

Perverse,  what,  82. 
Against  evidence,  what,  82. 

New  trial  granted  in  cases  of,  82. 
Jury  may  find  general  or  special,  82. 
Evidence  of  jurors  not  receivable  to  vary  or  explain,  68C 
Void,  when,  591. 
Vestry  Clerk, 

Appointment  of,  may  be  presumed,  356. 
Vexation, 

Evidence  produced  in  order  to  create,  excluded,  47. 
False  confessions  to  escape,  587. 
Vicarage, 

Endowment  of,  may  be  presumed,  393. 
Vice, 

Presumption  against,  349. 
View, 

Real  evidence  afforded  by,  197. 
Villenage,  Proof  of, 

Testimony  of  women  said  to  be  excluded  in  cases  of,  64. 
Doubtful  if  it  could  be  by  one  witness,  614. 
Violent  Presumption, 

What,  317. 
Viva  voce  Examination, 

In  general  required  by  English  law,  100. 
Great,  advantages  of,  100. 
Lately  extended  to  eertain  tribunals,  107. 
Voir  dire,  Examination  on  the, 
What,  133. 
Witness  examined  on,  may  state  contents  of  written  instrument, 490. 

Wager  of  Law, 

Observations  on,  42. 
Waste  Lands, 

Presumption  as  to  property  in,  426. 


12/2  INDEX.  {The  rtf entices  au 

Ways   Private, 

Presumption  as  to  property  in  soil  of,  426. 
Ways,  Public, 

Presumption  as  to  dedication  of,  387. 

As  to  property  in  soil  of,  426. 

Weight  of  Evidence,  is  a  question  of  fact,  81. 
Will, 

How  to  be  executed,  60,  222. 
Presumptions  in  favor  of  due  execution  of,  368. 
Revocation  of,  when  presumed,  401. 
Execution  of,  how  proved,  611. 
Will,  Attesting  Witness  to, 

Devise  to,  void,   144. 
Witchcraft, 

Confessions  of,  572. 
«  Without  Prejudice," 

Communications  made  not  receivable  in  evidence,  528. 
Witness, 

What,  124. 

Who  compellable  to  attend  as,  124,  125. 

Exceptions,  101,  125. 
Privilege  of,  in  not  answering  questions,  126. 
Tending  to  criminate,  126. 

to  expose  to  penalty,  126. 
to  expose  to  forfeiture,  126. 
to  disgrace,  130. 

to  subject  to  civil  proceedings,  131. 
Incompetency  of,  132. 

Distinction  between  and  credibility,  132. 

Not  presumed,  133. 

How  ascertained,  133. 

Grounds  on  which  witness  may  be  rejected  unheard,  134. 

Expediency  of  rejecting,  144. 

Grounds  of,  in  English  law, 

1.  Want  of  reason  and  understanding,  145. 
Deficiency  of  intel'ect,  146. 
Immaturity  of  intellect,  151. 
Testimony  of  children,  151. 
Old  law,  152. 
Gradual  changes,  153. 
Examination  of  children  by  judge,  156. 
Dying  declarations  of,  157. 
Effect  of  evidence  of,  158 
S.  Want  of  religion,  159. 

1.  Want  of  religious  knowledge,  160. 

2.  Belief,  161. 


t,  the  Sections.]  .    INDEX.  12?  3 

Witness—  Continued. 

3.  Refusal  to  comply  with  religious  forms,  166. 
Persons  excused  from  taking  oaths,  166. 
8.  Interest,  167. 

1.  Parties  to  the  suit,  168. 

Exceptions, 

At  common  law,  169. 
Prosecutors,  169. 
Approvers  and  accomplices,  170. 
Issues  from  Chancery.  172. 
Orders  of  reference,  173. 
By  statute,  173. 

2.  Husbands  and  wives  of  parties  to  the  suit,  175. 

General  rule,  175. 
Exceptions, 

At  common  law,  176. 

Charges  of  personal  injury,  176. 
^  Abduction,  176. 

Bigamy,  177. 

High  treason — doubtful,  178. 
By  statute,  179. 

3.  Competency  of  parties  and  their  husbands  or  wives 
in  reveuue  prosecutions,  181. 

4.  Competency  of  parties  in  the  Court  for  Pivorce 

and  Matrimonial  Causes,  182. 
Certain  persons  who  may  seem  incompetent  witnesses, 

1.  The  Sovereign,  183. 

2.  Attorney  in  a  cause,  184. 

3.  Counsel,  184. 

4.  Jurors,  187. 

5.  Judges,  188. 

Exceptions  to  the  credit  of  witnesses,  189. 

Interests  and  motives  producing  falsehood,  190. 

1.  Pecuniary  interest,  191. 

2.  Relations  between  the  sexes,  191. 

3.  Other  domestic  and  social  relations,  193. 

4.  Desire  to  preserve  reputation,  194. 

5.  Interest  ir.  or  sympathy  for  others,  195. 
Attesting,  when  must  be  called,  97,  220,  527. 

Witness,  Affidavit  of, 

When  it  may  be  read  at  the  trial,  103. 

Witness,  Deceased, 

Evidence  or  deposition  of,  when  receivable,  103,  496,  500. 

Witnesses, 

Checks  on,  100. 


1^74  IXDEX.   .  \The  references  an 

Witnesses — continued. 

Viva  voce  examination  and  cross-examination,  100. 
Publicity  of  judicial  proceedings,  100. 
.Number  of,  absurdity  of  laws  attempting  to  limit,  48. 

Rule  of  our  law  as  to.  596. 
Exceptions,  at  common  law,  603,  615. 

By  statute,  615.  629. 
Ordering  out  of  court,  636. 
Leading  questions  to,  641. 
Discrediting  adversary's,  644. 

party's  own,  645. 
Examination  and  cross-examination  of,  rules  for  conducting,  645. 
Witnesses,  Trial  by,  612. 
Women,  Testimony  of, 

Rejected  by  the  laws  of  some  countries,  64. 

formerly  by  the  English  law  in  certain  cases,  64. 
Words, 

Accompanying  an  act,  may  be  proved  as  part  of  res  gestae,  521. 
Self-disservine  evidence  may  be  supplied  by,  521. 
"  Writing,"  and  «  Written  Evidence," 
Secondary  meanings  of,  217. 
Parol  evidence  inferior  to,  223. 
Self-disserving  evidence  may  be  supplied  by,  521. 
Writings, 

Are  either  public  or  private,  218. 
Public, 

Are  either  judicial,  218. 

Or  not  judicial,  218. 
Of  record,  218. 

Or  not  of  record,  218. 
Principle  of  the  admissibility  of,  219. 
"When  primary  evidence  of,  not  required,  484. 
Different  kinds  of  copies  used  for  proof  ©f,  486. 
Proof  of,  in  general,  487. 
Special  modes  of,  provided  by  statute,  488. 
Are  cumulative,  488. 
Private, 

Under  seal — deeds,  220. 
Not  under  seal,  221. 
Proof  of,  220. 
Written  Evidence, 

Difference  between  and  evidence  in  writing,  217. 
Superior  to  parol  or  verbal  evidence,  223. 
Meaning  of  this,  223. 
Written  Instrument, 

Can  not  in  general  be  contradicted,  varied,  or  explained,  by  extnn« 
eic  evidence,  226. 


to  the  Sections.']  INDEX  127 S 

Written  Instrument — continued. 

Exceptions,  226. 

Latent  ambiguity,  226. 

Fraud,  &c,  227. 

Evidence  of  usage,  228. 
Wrongful  Conduct. 

Presumption  against,  360. 


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